OF THE RIGHT TO FREEDOM; AND OF TRAITORS by John Dickinson 1732-1808

Henry Dont Tread FlagOF THE RIGHT TO FREEDOM; AND OF TRAITORS.
[by John Dickinson 1732-1808]

KINGS or parliaments could not give the rights essential to happiness, as you confess those invaded by the Stamp Act to be. We claim them from a higher source—from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals . They are created in us by the decrees of Providence which establish the laws of our nature . They are born with us; exist with us; and cannot be taken from us by any human power, without taking our lives. In short, they are founded on the immutable maxims of reason and justice . It would be an insult on the divine Majesty to say, that he has given or allowed any man or body of men a right to make me miserable. If no man or body of men has such a right, I have a right to be happy. If there can be no happiness without freedom, I have a right to be free. If I cannot enjoy freedom without security of property, I have a right to be thus secured. If my property cannot be secure, in case others over whom I have no kind of influence may take it from me by taxes under pretence of the public good, and, for enforcing their demands, may subject me to arbitrary, expensive, and remote jurisdictions, I have an exclusive right to lay taxes on my own property either by myself or those I can trust; of necessity to judge in such instances of the public good; and to be exempt from such jurisdictions. ….

Galatians_5-1Every man must remember, how, immediately after the tempest of the late war was laid, another storm began to gather over North America. Every wind that blew across the Atlantic brought with it additional darkness. Every act of the administration seemed calculated to produce distress and to excite terror. We were alarmed—we were afflicted. Many of our colonies sent home petitions; others ordered their agents to make proper applications on their behalf. What was the effect? They were rejected without reading. They could not be presented, “without breaking through a rule of the house.” They insisted upon a right, that, it “was previously determined should not be admitted.” The language of the ministry was “that they would teach the insolent North Americans the respect due to the laws of their mother country.” They moved for a resolution “that the parliament could legally tax us.” It was made. For a bill; it was framed. For its dispatch; it was passed. The badges of our shame were prepared, too gross, too odious—even in the opinion of that administration—to be fastened upon us by any but Americans. Strange delusion! to imagine that treachery could reconcile us to slavery. They looked around; they found Americans—0 Virtue! they found Americans to whom the confidence of their country had committed the guardianship of her rights—on whom her bounty had bestowed all the wreck of her fortunes could afford—ready to rivet on their native land, the nurse of their infancy, the protectrix of their youth, the honorer of their manhood, the fatal fetters which their information had helped to forge. They were to be gratified with part of the plunder in oppressive offices for themselves and their creatures. By these, that they might reap the rewards of their corruption, were we advised—by these, that they might return masters who went out servants, were we desired—to put on the chains, and then with shackled hands to drudge in the dark, as well as we could, forgetting the light we had lost “If1forget thee, let my right hand forget her cunning—if I do not remember thee, may my tongue cleave to the roof of my mouth,”

“The highest glory of the American Revolution was this; 
it connected, in one indissoluble bond, the principles 
of civil government with the principles of Christianity.” 
quote John Quincy Adams

A DUTY TO POSTERITY
[From the Same.]

HONOR, justice and humanity call upon us to hold and to transmit to our posterity, that liberty, which we received from our ancestors. It is not our duty to leave wealth to our children; but it is our duty to leave liberty to them. No infamy, iniquity, or cruelty can exceed our own if we, born and educated in a country of freedom, entitled to its blessings and knowing their value, pusillanimously deserting the post assigned us by Divine Providence, surrender succeeding generations to a condition of wretchedness from which no human efforts, in all probability, will be sufficient to extricate them; the experience of all states mournfully demonstrating to us that when arbitrary power has been established over them, even the wisest and bravest nations that ever flourished have, in a few years, degenerated into abject and wretched vassals.

Natural Rights Of The Colonists As Men by Founder Samuel Adams Nov 20, 1772

Samuel Adams1Natural Rights Of The Colonists As Men; by Samuel Adams.

Boston Gazette, November 20, 1772.

Rights Of The Colonists As Men.

Among the natural rights of the colonists are these: First, a right to life. Second, to liberty. Thirdly, to property: together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature. All men have a right to remain in a state of nature as long as they please, and in case of intolerable oppression, civil or religious, to leave the society they belong to, and enter into another. When men enter into society, it is by voluntary consent, and they have a right to demand and insist upon the performance of such conditions and previous limitations as form an equitable original compact.

Every natural right not expressly given up, or, from the nature of a social compact necessarily ceded, remains. All positive and civil laws should conform, as far as possible, to the law of natural reason and equity. As neither reason requires nor religion permits the contrary, every man living in or out of a state of civil society has a right peaceably and quietly to worship God according to the dictates of his conscience.

“Just and true liberty, equal and impartial liberty,” in matters spiritual and temporal is a thing that all men are clearly entitled to by the eternal and immutable laws of God and nature, as well as by the law of nations and all well-grounded municipal laws, which must have their foundation in the former.

In regard to religion, mutual toleration in the different professions thereof, is what all good and candid minds in all ages have ever practised, and both by precept and example inculcated on mankind. It is now generally agreed among Christians that this spirit of toleration, in the fullest extent consistent with the being of civil society, is the chief characteristical mark of the true Church. Insomuch that Mr. Locke has asserted and proved, beyond the possibility of contradiction on any solid ground, that such toleration ought to be extended to all whose doctrines are not subversive of society. The only sects, which he thinks ought to be, and which by all wise laws are, excluded from such toleration, are those who teach doctrines subversive of the civil government under which they live. The Roman Catholics, or Papists, are excluded by reason of such doctrines as these :—That princes excommunicated may be deposed, and those that they call heretics may be destroyed without mercy; besides their recognizing the Pope in so absolute a manner, in subversion of government, by introducing, as far as possible into the states under whose protection they enjoy life, liberty and property, that solecism in politics, imperium in imperio (translation: control of the government), leading directly to the worst anarchy and confusion, civil discord, war, and bloodshed.

The natural liberty of man by entering into society is abridged or restrained, so far only as is necessary for the great end of society—the best good of the whole.

In the state of nature every man is, under God, judge and sole judge of his own rights and of the injuries done him. By entering into society he agrees to an arbiter or indifferent judge between him and his neighbors; but he no more renounces his original right, thereby taking a cause out of the ordinary course of law, and leaving the decision to referees or indifferent arbitrators. In the last case, he must pay the referee for time and trouble. He should also be willing to pay his just quota for the support of the government, the law and the constitution; the end of which is to furnish indifferent and impartial judges in all cases that may happen, whether civil, ecclesiastical, marine, or military.

The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but only to have the law of nature for his rule.

In the state of nature men may, as the patriarchs did, employ hired servants for the defence of their lives, liberties and property, and they should pay them reasonable wages. Government was instituted for the purpose of common defence, and those who hold the reins of government have an equitable, natural right to an honorable support from the same principle that “the laborer is worthy of his hire.” But then the same community which they serve ought to be the assessors of their pay. Governors have a right to seek and take what they please; by this, instead of being content with the station assigned them, that of honorable servants of the society, they would soon become absolute masters, despots and tyrants. Hence, as a private man has a right to say what wages he will give in his private affairs, so has a community to determine what they will give and grant of their substance for the administration of public affairs. And in both cases more are ready to offer their service at the proposed and stipulated price than are able and willing to perform their duty.

In short it is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society to renounce their essential natural rights, or the means of preserving those rights, when the grand end of civil government, from the very nature of its institution, is for the support, protection, and defence of those very rights; the principal of which, as is before observed, are life, liberty, and property. If men through fear, fraud or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right of freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave.

It does not take a majority to prevail, but an irate, 
tireless minority, keen on setting brushfires of freedom 
in the minds of men ~ S. Adams

THE RIGHTS OF THE COLONISTS AS CHRISTIANS.

These may be best understood by reading and carefully studying the institutes of the great Lawgiver and head of the Christian Church, which are to be found clearly written and promulgated in the New Testament

By the act of the British Parliament, commonly called the Toleration Act, every subject in England, except Papists, etc., was restored to, and re-established in, his natural right to worship God according to the dictates of his own conscience. And by the charter of this province it is granted, ordained and established (that is declared as an original right), that there shall be liberty of conscience allowed in the worship of God to all Christians except Papists, inhabiting, or which shall inhabit or be resident within such province or territory. Magna Charta itself is in substance but a constrained declaration or proclamation and promulgation in the name of King, Lords, and Commons of the sense the latter had their original, inherent, indefeasible, natural rights, as also those of free citizens equally perdurable with the other. That great author, that great jurist, and even that court writer, Mr. Justice Blackstone, holds that this recognition was justly obtained of King John, sword in hand. And peradventure it must be one day, sword in hand, again rescued and preserved from total destruction and oblivion.

THE RIGHTS OF THE COLON1STS AS SUBJECTS.

A commonwealth or state is a body politic, or civil society of men united together to promote their mutual safety and prosperity by means of their union.

The absolute right of Englishmen and all freemen, in or out of civil society, are principally personal security, personal liberty, and private property.

All persons born in the British American Colonies, are by the laws of God and nature, and by the common law of England, exclusive of all charters from the Crown, well entitled, and by acts of the British Parliament are declared to be entitled, to all the natural, essential, inherent, and inseparable rights, liberties and privileges of subjects born in Great Britain or within the realm. Among these rights are the following, which no man, or body of men, consistently with their own rights as men and citizens, or members of society, can for themselves give up or take away from others.

“First. The first fundamental positive law of all commonwealths or states, is the establishing the legislative power. As the first fundamental natural law, also, which is to govern even the legislative power itself is the preservation of the society.

“Secondly. The legislative has no right to absolute arbitrary power over the lives and fortunes of the people; nor can mortals assume a prerogative not only too high for men, but for angels, and therefore reserved for the exercise of the Deity alone.

“The Legislative cannot justly assume to itself a power to rule by extempore arbitrary decrees ; but it is bound to see that justice is dispensed, and that the rights of the subjects be decided by promulgated, standing, and known laws, and authorized independent judges;” that is, independent, as far as possible, of prince and people. “There should be one rule of justice for rich and poor, for the favorite at court, and the countryman at the plough.

“Thirdly. The supreme power cannot justly take from any man any part of his property without his consent in person or by his representative.”

These are some of the first principles of natural law and justice, and the great barriers of all free states, and of the British Constitution in particular. It is utterly irreconcilable to these principles, and to many other fundamental maxims of the common law, common sense, and reason, that a British House of Commons should have a right at pleasure to give and grant the property of the colonists. (That the colonists are well entitled to all the essential rights, liberties, and privileges of men and freemen born in Britain, is manifest not only from the colony charters in general, but acts of the British Parliament.) The statute of the I3th of Geo. II, c. 7, naturalizes every foreigner after seven years’ residence. The words of the Massachusetts charter are these: “And further, our will and pleasure is, and we do hereby, for us, our heirs and successors, grant, establish, and ordain, that all and every of the subjects of us, our heirs and successors, which shall go to and inhabit within our said Province or Territory, and every of their children which shall happen to be born there or on the seas in going thither or returning from thence, shall have and enjoy all liberties and immunities of free and natural subjects within any of the dominions of us, our heirs and successors, to all intents, constructions, and purposes whatsoever, as if they and every one of them were born within this, our realm of England.”

Now what liberty can there be where property is taken away without consent? Can it be said with any color of truth and justice that this continent of three thousand miles in length, and of a breadth as yet unexplored, in which, however, it is supposed there are five millions of people, has the least voice, vote, or influence in the British Parliament? Have they all together any more weight or power to return a single member to that House of Commons who have not inadvertently, but deliberately, assumed a power to dispose of their lives, liberties, and properties, than to choose an Emperor of China? Had the colonists a right to return members to the British Parliament, it would only be hurtful, as, from their local situation and circumstances it is impossible they should ever be truly and properly represented there. The inhabitants of this country, in all probability, in a few years, will be more numerous than those of Great Britain and Ireland together; yet it is absurdly expected by the promoters of the present measure that these, with their posterity to all generations, should be easy while their property shall be disposed of by a House of Commons at three thousand miles distance from them, and who cannot be supposed to have the least care or concern for their real interest; who have not only no natural care for their interest, but must be in effect bribed against it, as every burden they lay on the colonists is so much saved or gained to themselves. Hitherto, many of the colonists have been free from quit rents; but if the breath of a British House of Commons can originate an act for taking away all our money, our lands will go next, or be subject to rack rent from haughty and relentless landlords, who will ride at ease while we are trodden in the dirt. The colonists have been branded with the odious names of traitors and rebels only for complaining of their grievances. How long such treatment will or ought to be borne, is submitted.

RELIGIOUS VIEWS OF THOMAS JEFFERSON; source: The Jefferson Bible

ThomasJeffersonAdvantagesJesus

See also: Thomas Jefferson Notes of Religion October 1776
 
Dear Sir: In the ancient feudal times of our good old forefathers,when the Seigneur married his daughter or knighted his son, it was the usage for his vassals to give him a year’s rent extra, in the name of an aid. I think it as reasonable, when our Pastor builds a house, that each of his flock should give him an aid of a year’s contribution. I enclose mine, as a tribute of justice, which of itself, indeed, is nothing, but as an example, if followed, may become something. In any event, be pleased to accept it as an offering of duty and a testimony of my friendly attachment and high respect.—Thomas Jefferson to his minister Rev. Mr. Hatch, an Episcopal minister, who was settled in Charlottsville, Virginia, two miles from the residence of Mr. Jefferson, as rector of the parish; Monticello, December 8, 1821
 
“In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own. It is easier to acquire them, and to effect this, they have perverted the best religion ever preached to man into mystery and jargon, unintelligible to all mankind, and therefore the safer engine for their purposes.” —Thomas Jefferson to H. G. Spafford, 1814

RELIGIOUS VIEWS OF THOMAS JEFFERSON; Source The Jefferson Bible: The Life and Morals of Jesus of Nazareth edited by Thomas Jefferson published 1902 by order of Congress:

Editors Note: As Jefferson tells us in his letter to Benjamin Rush he was a Christian, he was however like many of the Christians I have grown up with, and known throughout my life, disenchanted with organized religion and opposed to the corrupting of the pure and simple religion which Jesus declared to his followers. I grew up with this same attitude and have told others “if you have to tell someone you’re a Christian then you are not.” It is time for the lies, put out by the left and those opposed to Christianity in this country to end!

“The moral precepts of Jesus are more pure, correct and sublime than those of the ancient philosophers.” ~ Thomas Jefferson Apr 19, 1803 in a letter to Edward Dowse

"the Christian religion was sometimes our topic; and I then 
promised you that one day or other,I would give you my views 
of it. They are the result of a life of inquiry and reflection, 
and very different from that Anti-Christian system imputed to 
me by those who know nothing of my opinions." ~ Jefferson

 

Thomas Jefferson Concerning those who Misinterpreted his Religious views (Click to enlarge)

Thomas Jefferson Concerning those who Misinterpreted his Religious views (Click to enlarge)

Begin excerpt:

“Say nothing of my religion. It is known to my God and myself alone. Its evidence before the world is to be sought in my life; if that has been honest and dutiful to society, the religion which has regulated it cannot be a bad one.”

In a letter to his daughter, written in 1803, Mr. Jefferson said: “A promise made to a friend some years ago, but executed only lately, has placed my religious creed on paper. I have thought it just that my family, by possessing this, should be enabled to estimate the , libels published against me on this, as on every other possible subject.” The “religious creed” to which he referred was a comparison of the doctrines of Jesus with those of others, prepared in fulfillment of a promise made to Dr. Benjamin Rush. This paper, with the letter to Dr. Rush which accompanied it, is a fit introduction to the “Jefferson Bible.”

Under date of April 21, 1803, Jefferson wrote to Dr. Benjamin Rush, sending him the syllabus of an estimate of the merits of the doctrines of Jesus compared with those of others. This is the communication to which he had referred in his letter to Dr. Priestley. In the letter accompanying the syllabus he tells Dr. Rush that he is sending this for his own eye, simply in performance of his promise, and indicates its confidential character in the following words: “And in confiding it to you, I know it will not be exposed to the malignant perversions of those who make every word from me a text for new misrepresentations and calumnies. I am, moreover, averse to the communication of my religious tenets to the public, because it would countenance the presumption of those who have endeavoured to draw them before that tribunal, and to seduce public opinion to erect itself into that inquest over the rights of conscience, which the laws have so justly proscribed. It behooves every man who values liberty of conscience for himself to resist invasions of it in the case of others, or their case may, by change of circumstances, become his own.”

ThomasJeffersonQuotesFreedomThought

Letter to Benjamin Rush:
Dear Sir: In some of the delightful conversations with you, in the evenings of 1798-99, and which served as an anodyne to the afflictions of the crisis through which our country was then laboring, the Christian religion was sometimes our topic; and I then promised you that one day or other, I would give you my views of it. They are the result of a life of inquiry and reflection, and very different from that Anti-Christian system imputed to me by those who know nothing of my opinions. To the corruptions of Christianity I am indeed opposed; but not to the genuine precepts of Jesus himself. I am a Christian in the only sense in which he wished any one to be; sincerely attached to his doctrines, in preference to all others; ascribing to himself every human excellence, and believing he never claimed any other.

At the short intervals since these conversations, when I could justifiably abstract my mind from public affairs, this subject has been under my contemplation; but the more I considered it, the more it expanded beyond the measure of either my time or information. In the moment of my late departure from Monticello, I received from Dr. Priestly his little treatise of “Socrates and Jesus Compared.” This being a section of the general view I had taken of the field, it became a subject of reflection while on the road, and unoccupied otherwise. The result was to arrange in my mind a syllabus, or outline, of such an estimate of the comparative merits of Christianity, as I wished to see executed by some one of more leisure and information for the task than myself. This I now send you, as the only discharge of my promise I can probably ever execute. And in confiding it to you, I know it will not be exposed to the malignant perversions of those who make every word from me a text for new misrepresentations and calumnies.

I am moreover averse to the communication of my religious tenets to the public; because it would countenance the presumption of those who have endeavored to draw them before that, tribunal, and to seduce public opinion to erect itself into that inquisition over the rights of conscience which the laws have so justly proscribed. It behooves every man who values liberty of conscience for himself to resist invasions of it in the case of others, or their case may, by change of circumstances, become his own. It behooves him, too, in his own case, to give no example of concession, betraying the right, of independent opinion by answering questions of faith, which the laws have left between God and himself.

Accept my affectionate salutations.                                                 ******

ThomasJeffersonQuotesMoralityJesus

Another note from me:
As you can see when Jefferson wrote “And in confiding it to you, I know it will not be exposed to the malignant perversions of those who make every word from me a text for new misrepresentations and calumnies.” It is apparent just like the democrats, the liberal news media and pundits do to Republican politicians now, (especially those who are of a Tea Party or Reagan conservative persuasion) they are misquoted, their words taken out of context, etc., which is exactly what they obviously did to him back then.

This is shown also in the misinterpretation of The Bill of Rights today, it does not say “Wall of Separation” It says” “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

It was not meant to keep Christians and their Speech out of the public sphere. It was meant however to keep the government out of churches and out of peoples right to freely express their religious beliefs!

In Jefferson’s so-called “Wall of Separation Letter” he was expressing a personal opinion, get the word express, as in exercising his free right to religious expression. To have convoluted his words in that letter into having no religious expression in the public or political sphere is a direct contradiction of “free expression” and puts the first amendment of the Constitution in direct opposition to its original meaning.

ThomasJeffersonQuotesShays

More from Jefferson on his religious views:

Under date of January 29, 1815, Jefferson wrote from Monticello to Charles Clay: “Probably you have heard me say I had taken the four Evangelists, had cut out from them every text they had recorded of the moral precepts of Jesus, and arranged them in a certain order, and although they appeared but as fragments, yet fragments of the most sublime edifice of morality which had ever been exhibited to man.” In this letter however Jefferson disclaims any intention of publishing this little compilation, saying: “I not only write nothing on religion, but rarely permit myself to speak on it.”

As you see in his letter to Rush he did not speak of his religious views because he knew his words would be perverted, misconstrued, misused and misrepresented. We have seen this done in recent history when they constantly refer to the Wall of Separation letter, by those who wish to restrict people first amendment protected God-given right to the free exercise of religion according to the dictates of their own conscience.

Again, in a letter to Charles Thomson, written from Monticello, under date of January 9, 1816, he says: “I, too, have made a wee little book from the same materials, which I call the Philosophy of Jesus; it is a paradigma of his doctrines, made by cutting the texts out of the book, and arranging them on the pages of a blank book, in a certain order of time or subject. A more beautiful or precious morsel of ethics I have never seen; it is a document in proof that I am a real Christian, that is to say, a disciple of the doctrines of Jesus.”

NOTE: See Jefferson was not an atheist or deist as many claim today. Indeed I would argue that he was somewhat of a coward, for not standing up publicly more than he did, for what he actually believed. Granted he was concerned about how religious leaders would use his words or opinions to promote their pet causes, and he was also concerned how others would misuse and misguide people by taking his words out of context. However in so doing he made it so as we see today how greatly they indeed have been taken his words out of context, in ways he never imagined they would be.

MAKING THE FOREIGN-BORN FAMILIAR WITH THE AMERICAN SPIRIT By George S. Tilroe

NoAmnestyOn Immigration and Immigrants: No less an American than George Washington had something to say on this subject. When it was proposed to bring over here the faculty of a Genevan university to take charge of an American university, he objected. He said he was against importing an entire “seminary of foreigners for the purpose of American education.” Neither did he favor sending our young men abroad to be educated. He feared what experience has shown he had cause to fear. He said they “contracted principles unfriendly to republican government and to the true and genuine liberties of mankind.” George Washington also had ideas about immigration that are good to-day. “My opinion with respect to immigration,” he said, “is, that except of useful mechanics and some particular descriptions of men or professions, there is no need of encouragement; while the policy or advantage of its taking place in a body (I mean the settling of them in a body) may be much questioned; for by so doing they retain their language, habits, principles, good or bad, which they bring with them. Whereas, by an intermixture with our people, they or their descendants get assimilated to our customs, measures, and laws; in a word, soon become one people.”

“It remains to be seen,” he declared, “whether our country will stand upon independent ground. . . . A little time will show who are its true friends, or, what is synonymous, who are true Americans.”

American

source: PurdueEdu

MAKING THE FOREIGN-BORN FAMILIAR WITH THE AMERICAN SPIRIT By George S. Tilroe, Syracuse, NY published 1918 New York Education.

AMERICANIZATION of the immigrant to-day involves the two outstanding forces of world-wide human interest—the material and the spiritual. It is demanded that we judge their merits and determine which shall predominate as our national characteristic.

In teaching the immigrant, we have commonly regarded our work as an effort to make him a more valuable material asset in the community. We have taught him the English language to help him get a better job and to answer the questions of the Naturalization Court. The instruction has been essentially to meet material needs. Materially, we have accomplished our purpose.

The big problem to-day, however, is not material. Our work of Americanization is a spiritual task. It requires an exercise of personality, enthusiasm and thoroughness unparalleled in the history of the republic. It demands that we arouse in the immigrant a spirit of loyalty, a spirit like that which has ever led this nation on to victory.

american-spirit-24x24-300dpi

source: zazzle.com

The spirit of the American people is the most striking difference the immigrant sees between foreign and American life. It is the spirit we point to with pride, the spirit of liberty, of freedom and independence—the Spirit of 76! It grips the foreigner on first acquaintance and the longer he lives here the better he likes it. It throws a magnetizing influence over him. It is our spirit he is acquiring during the process of his assimilation, therefore, in such degree as we display traits worthwhile, in that degree is the immigrant becoming a worth-while American. This means that we are doubly responsible for the making of good Americans. We must be good Americans ourselves, if we would hope to get the American spirit across to the immigrant. We must illustrate the American spirit by setting before our alien population examples worthy of emulation.

Unfortunately, we have run the material Marathon at such a pace that we have heard hours of such rot as that, some of them have rather disregarded the intrinsic spirit of our laws and institutions and obscured the meaning of the American ideal. Meanwhile, the alien has debated the question of American citizenship, considering whether he shall become one of us. It has been difficult for him to differentiate between liberty and license, while our material manner of looking at the situation has rather confused him. We have not imbued him with the American spirit sufficiently to get him out of the alien class, consequently we have almost over-burdened ourselves with a conglomeration of crude humanity that is now the object of no little concern in some quarters.

The world war, a leveler of peoples, a spiritual prod, a national awakener, has done us immeasurable good. We have learned more in the last year than in half a century previous. We have learned the danger of spiritual lethargy and the value of national brotherhood. During the coming months, our American spirit is doubtless due for further quickening with its natural effect upon the immigrant.

Under these circumstances it is worthwhile to take invoice of our stock of Americanism. Most of us have acquired the American spirit through study of our great men and through visiting places of historical significance. Certain leaders and their heroic deeds stand out boldly. They were part of our education. When barely out of the cradle we learned about the hatchet and the cherry tree, about Honest Abe, the rail splitter. We have also learned about millions of common folk, living the simple life, who went to the front when duty called, but we seem to have overlooked the meaning of our nationality, for, it is said that “More than 50 per cent, of us have less than a 50 per cent, knowledge of the principles underlying the foundation of our government.”

Materially minded schemers have helped load us up with the problems now confronting us. They have victimized thousands of immigrants, many of them so many times that they have become distrustful of well intentioned persons who approach them with a sincere desire to help them. Meantime many of our better classes, rich and poor, have stood by, indifferent to the proceedings. We have declared that we need these folk to do our drudgery, to dig our ditches, to do our dirty work! Material selfishness has befogged the issue of American patriotism! We have led thousands of our immigrants no farther than the slums with harmful results. The American spirit withers in the hovels and dark passageways of the tenement sections. Many aliens, however, have swallowed the bitter pill of social ostracism and appeared here and there as leaders of influential colonies. Although many have not risen above the level of the common laborer, they have acquired enough of the spirit of genuine democracy to return to their native lands and spread American ideas. Some of our immigrants are sitting in legislative halls, others are spreading sedition and treachery!

Instead of consigning the alien to the slums, let’s open up to him not only the opportunities of our industrial centers, but also the advantages of the rural regions where fresh air and sunshine are plentiful, and clannishness is short lived. It is our duty to teach of all our resources and how they may be used for the common good. Before we can do much teaching, we must solve the problem of reaching these people. We must have funds and we must get our pupils into well equipped school plants where the American spirit is exemplified in all the surroundings. The American eagle can’t scream well cooped up in a foul cage.

Heretofore, in our immigrant education campaigns, we have used every available means to fill our evening schools. We have opened classes near immigrant homes, used posters, letters, missionaries and moral suasion. We have reached many through social activities and helped them because we appealed to their human, spiritual side, but definite results have been disappointing. We have not reached the masses.

In many of our cities, immigrants who have been in this country many years, have not taken advantage of instruction offered gratis in our night school. In some cities much less than 10 per cent, of the total foreign population is attending. In New York state are more than 3,000,000 foreigners ten years of age and over. Thirteen per cent, of them are illiterate as compared with 1 per cent, of the native born.

The showing is not quite so bad throughout the nation as a whole for, among children of foreign-born parentage, there is less illiteracy among the whites than among children of native born parents. Fully 50 per cent, of our children drop out of the elementary school into material activities, foreigners to greater degree than natives. A comparatively small percentage of all go through high school. In the high school and colleges, however, the native-born boys and girls outstrip immigrant children, showing an advantage over the flow from the elementary schools into material avenues of life employment. If they learn to exercise their minds along thought channels, young men and young women of the high schools and colleges are the hope of perpetuating in this country a race of thinking, reasoning human beings. It requires more than a machine to perpetuate the American spirit.

There is yet much to be done and it must be done through the greatest Americanization agency in the world—the American public school.

The work must be centralized here. It should not be scattered among various institutions and organizations which produce only indefinite results. The American spirit is nourished in the public schools and in them we must provide the proper kind of Americanism. There must be no taint of enemy propaganda anywhere in our educational system!

Raw material for the schools is available in this country to the extent of some 13,000,000 foreign-born people. One fifth of them cannot speak the English language and a much larger number have not yet grasped the American idea otherwise. It is our duty to teach them and their duty to try to learn. We owe it to them, they to us and all of us to our country. We must emphasize co-operation to preserve our democracy, for without it, democracies fail.

The old Athenian democracy, which produced a grand example of virtuous, civilized manhood, went to pieces. It had one fault. The people had no capacity for working together, consequently stronger, warring peoples, by using might, gobbled them up. But many of the good qualities of the ancient Greeks survive. They are the qualities showing the spirit of the people. Pericles emphasized the cultural side of their nature and did a lasting service to mankind.

Even old Greece had its alien problem. The spirit of that age drew a contrast between the principles of democracy and those of foreign, barbarian folk. The Greeks had to battle against evil influences of brutal, savage tribes of northern Europe, influences of two thousand years ago which are cropping out to-day. Thus, in so far as civilization in the finer sense is concerned, our problem is like that of Pericles’ time.

The spirit that prompted Pericles prompted the founders of this republic. It led to the adoption of the Constitution, the foundation of Americanism. If our immigrants become familiar with this they will have in its first paragraph the keynote of the American spirit in these words, “We, the People of the United States, in order to form a more perfect Union.” In this union, we escape the fault that caused the downfall of the mother of democracies and secure a guarantee of national strength. We Americans have been brought up under the spirit of this Constitution, while in Europe, for several centuries, there has been a material existence of undemocratic characteristics. Our immigrants, with few exceptions, were trained under this autocratic system of education. In America, we have used a democratic system, although we have allowed autocratic features to creep in, some innocently and others deliberately. Definite steps have been taken not only to disrupt the nation, but also to put foreign features into our education system. It is not a matter of language; it has to do with the introduction of European ideas. It concerns the fostering of materialistic principles which, in an autocracy, have produced a  generation of common people now subservient machines manipulated by rulers who command barbarism which the educational training of the masses enforces them to practice. We have no place in America for any part of an educational system that trains immigrant children or alien adults for any such subserviency as this, yet here is what I read in a volume published in America six years ago: “Germans made many struggles to introduce and foster their language in our schools, taxed themselves for the maintenance of German schools, and fought in the press, the legislature and on the stump. There was Scheib in Baltimore, Feldner and Schneck in Detroit, Engelman and Herflinger in Milwaukee, Heilmann in Louisville, Conrad Krez in Wisconsin,” and scores of others. The author regrets that credit has not been given these men for their pioneer work in establishing a German normal school in Milwaukee and in devoting their energy and means to the preservation of German in this country. This was published six years ago. What do you think of it to-day? We have not only permitted ourselves to be exploited by foreigners but many of our own educators have gone abroad to gather up foreign ideas for American consumption. Some may be good and some bad, but, considered from the viewpoint of America First, there must be Americans able to devise Yankee substitutes for those worthwhile.

Several questions arise right here. Should not American educators investigate the subject and weed out objectionable foreign features that have gotten into our schools? If European systems of education produce a people in the condition of subserviency in which we believe Teutonic peoples to be living, do we want this kind of education in America? Do we want our people to be mere material machines or do we want them educated to enjoy life as it should be lived in a free democracy? Do we want them fitted only for work or do we want them prepared not only to work intelligently but also able to employ their leisure hours happily and profitably? The material was never intended to consume the whole day nor even one-half of it.

No less an American than George Washington had something to say on this subject. When it was proposed to bring over here the faculty of a Genevan university to take charge of an American university, he objected. He said he was against importing an entire “seminary of foreigners for the purpose of American education.” Neither did he favor sending our young men abroad to be educated. He feared what experience has shown he had cause to fear. He said they “contracted principles unfriendly to republican government and to the true and genuine liberties of mankind.” George Washington also had ideas about immigration that are good to-day. “My opinion with respect to immigration,” he said, “is, that except of useful mechanics and some particular descriptions of men or professions, there is no need of encouragement; while the policy or advantage of its taking place in a body (I mean the settling of them in a body) may be much questioned; for by so doing they retain their language, habits, principles, good or bad, which they bring with them. Whereas, by an intermixture with our people, they or their descendants get assimilated to our customs, measures, and laws; in a word, soon become one people.”

“It remains to be seen,” he declared, “whether our country will stand upon independent ground. . . . A little time will show who are its true friends, or, what is synonymous, who are true Americans.”

The acid test of our Americanism is now on. Immigrants and natives are showing their colors. Our history teaches us that true Americans are held in reverence; traitors go to ignoble graves!

Whispering ” Tis well,” George Washington died, mourned by a nation.

Benedict Arnold went out a penitent, despised by everybody.

Among his many benefactions, Washington left us a suggestion that fits nicely into our scheme of Americanization. He favored a plan to spread systematic national ideas throughout the nation. In this way immigrants may learn the workings of the American spirit and what sort of men have guided our destiny. Illustrations are plentiful. The Pilgrims came here for freedom of worship. From the belfry of Old North Church a lantern signaled Paul Revere to begin his famous ride before Lexington and Concord. Seven thousand patriots gathered at Old South Church for that great American camouflage, the Boston Tea Party. Washington prayed for success at Valley Forge. John Adams recited every night the prayer his mother taught him as a boy. Ethan Allen appeared at Ticonderoga in the name of the Great Jehovah and the Continental Congress. This sort of spirit was back of the American revolution!

In Civil War days, Abraham Lincoln said, “Let us strive to deserve the continued care of the Divine Providence, trusting that in future emergencies He will not fail to provide us with the instruments of safety and security.”

And there is the Gettysburg address! It was the American spirit that gave us these: “With malice toward none, with charity for all;” “Give me liberty or give me death;” “Liberty and union, now and forever, one and inseparable!” In all this there is something higher than the material. It is powerful enough to repel a foreign foe. It has never tasted defeat.

This kind of Americanism taught to our immigrants has been the only force directly counteracting the spread of foreign propaganda in this country during the past twenty-five years! Its effect is seen on European battlefields to-day!

Fully one-third of the volunteers for the regular branches of the army, navy and marines this year are of foreign birth or parentage. In industrial centers they have volunteered in a ratio of 3 to 1 as compared with native sons. Many of them learned Americanism in our night schools. I saw some of them clad in khaki, march away. I went to the railway station with them. I was proud of them. I met others before the draft boards, accepting service without claim of exemption. I was proud of them because the chairmen of the examining boards told me they were showing a remarkable spirit in that they volunteered when they might claim exemption on the ground of being aliens. It was ample reward for fifteen years’ effort to get the American idea across. During the past three years the government has come to help us in this service. It has started a campaign of Americanization. We welcome the movement. It will help us continue the transformation of immigrants into highly respected and prosperous American citizens. We know many who have traveled this road. We are in touch with all nationalities, some of whom are scattered to all parts of the world. In America, we hope to cement this material into one spiritual union. The press, the pulpit and our law-making bodies can aid this work by considering such propositions as these:

1. Suppression of foreign language newspapers.

2. Supervision of societies of foreigners.

3. Scattering of colonies of foreigners.

4. Licensing of persons acting as interpreters.

5. Deportation of foreigners who refuse to declare their intentions after one year’s residence, unless registered.

6. Licensing of those who assume to prepare aliens for the Naturalization Court.

7. Compulsory attendance at evening schools of foreigners who cannot speak English.

8. Government control of public Americanization agencies centralized in the public schools.

9. The teaching of foreign languages in our schools by Americans.

Through education and legislation we must work together in that unity outlined in the Constitution, not forgetting that the genuine American spirit is one of right living under the Golden Rule. We have achieved success in a material way and enjoy many inventions, but no invention has yet approached the splendor of the spiritual. We are ringing a change on the materialistic tendencies of several centuries. The spirit of Christian brotherhood is getting hold of us. We are getting to be more like human beings. This humane spirit is a feature of democracy. May all nationalities be so imbued with it that “This nation, under God, shall not perish from the earth.”

Who Is The Final Judge or Interpreter in Constitutional Controversies by Joseph Story

Joseph Story 1Who Is The Final Judge or Interpreter in Constitutional Controversies:
JOSEPH STORY was born on September 18, 1779, in Marblehead, Massachusetts. He graduated from Harvard College in 1798. Story read law in the offices of two Marblehead attorneys and was admitted to the bar in 1801. He established a law practice in Salem, Massachusetts. In 1805, Story served one term in the Massachusetts Legislature, and in 1808 he was elected to the United States House of Representatives. After one term, he returned to the Massachusetts Lower House, and in 1811 he was elected Speaker. On November 18, 1811, President James Madison nominated Story to the Supreme Court of the United States. The Senate confirmed the appointment on February 3, 1812. At the age of thirty-two, Story was the youngest person ever appointed to the Supreme Court. While on the Supreme Court, Story served as a delegate to the Massachusetts Constitutional Convention of 1820 and was a Professor of Law at Harvard, where he wrote a series of nine commentaries on the law, each of which was published in several editions. Story served on the Supreme Court for thirty-three years. He died on September 10, 1845, at the age of sixty-five.

§ 373. THE consideration of the question, whether the constitution has made provision for any common arbiter to construe its powers and obligations, would properly find a place in the analysis of the different clauses of that instrument. But, as it is immediately connected with the subject before us, it seems expedient in this place to give it a deliberate attention.1

§ 374. In order to clear the question of all minor points, which might embarrass us in the discussion, it is necessary to suggest a few preliminary remarks. The constitution, contemplating the grant of limited powers, and distributing them among various functionaries, and the state governments, and their functionaries, being also clothed with limited powers, subordinate to those granted to the general government, whenever any question arises, as to the exercise of any power by any of these functionaries under the state, or federal government, it is of necessity, that such functionaries must, in the first instance, decide upon the constitutionality of the exercise of such power.2 It may arise in the course of the discharge of the functions of any one, or of all, of the great departments of government, the executive, the legislative, and the judicial. The officers of each of these departments are equally bound by their oaths of office to support the constitution of the United States, and are therefore conscientiously bound to abstain from all acts, which are inconsistent with it. Whenever, therefore, they are required to act in a case, not hitherto settled by any proper authority, these functionaries must, in the first instance, decide, each for himself, whether, consistently with the constitution, the act can be done. If, for instance, the president is required to do any act, he is not only authorized, but required, to decide for himself, whether, consistently with his constitutional duties, he can do the act.3 So, if a proposition be before congress, every member of the legislative body is bound to examine, and decide for himself, whether the bill or resolution is within the constitutional reach of the legislative powers confided to congress. And in many cases the decisions of the executive and legislative departments, thus made, become final and conclusive, being from their very nature and character incapable of revision. Thus, in measures exclusively of a political, legislative, or executive character, it is plain, that as the supreme authority, as to these questions, belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus, congress having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of reexamination in any other tribunal. So the power to make treaties being confided to the president and senate, when a treaty is properly ratified, it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined, in which a tax may be laid, or a treaty made, upon motives and grounds wholly beside the intention of the constitution.4 The remedy, however, in such cases is solely by an appeal to the people at the elections; or by the salutary power of amendment, provided by the constitution itself.5

§ 375. But, where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of a very different consideration. The decision then made, whether in favour, or against the constitutionality of the act, by the state, or by the national authority, by the legislature, or by the executive, being capable, in its own nature, of being brought to the test of the constitution, is subject to judicial revision. It is in such cases, as we conceive, that there is a final and common arbiter provided by the constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union.6

§ 376. Let us examine the grounds, on which this doctrine is maintained. The constitution declares, (Art. 6,) that “This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties, etc. shall be the supreme law of the land.” It also declares, (Art. 3,) that “The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States and treaties made, and which shall be made under their authority.” It further declares, ( Art. 3,) that the judicial power of the United States “shall be vested in one Supreme Court, and in such inferior courts, as the congress may, from time to time, ordain and establish.” Here, then, we have express, and determinate provisions upon the very subject. Nothing is imperfect, and nothing is left to implication. The constitution is the supreme law; the judicial power extends to all cases arising in law and equity under it; and the courts of the United States are, and, in the last resort, the Supreme Court of the United States is, to be vested with this judicial power. No man can doubt or deny, that the power to construe the constitution is a judicial power.7 The power to construe a treaty is clearly so, when the case arises in judgment in a controversy between individuals.8 The like principle must apply, where the meaning of the constitution arises in a judicial controversy; for it is an appropriate function of the judiciary to construe laws.9 If, then, a case under the constitution does arise, if it is capable of judicial examination and decision, we see, that the very tribunal is appointed to make the decision. The only point left open for controversy is, whether such decision, when made, is conclusive and binding upon the states, and the people of the states. The reasons, why it should be so deemed, will now be submitted.

§ 377. In the first place, the judicial power of the United States rightfully extending to all such cases, its judgment becomes ipso facto conclusive between the parties before it, in respect to the points decided, unless some mode be pointed out by the constitution, in which that judgment may be revised. No such mode is pointed out. Congress is vested with ample authority to provide for the exercise by the Supreme Court of appellate jurisdiction from the decisions of all inferior tribunals, whether state or national, in cases within the purview of the judicial power of the United States; but no mode is provided, by which any superior tribunal can re-examine, what the Supreme Court has itself decided. Ours is emphatically a government of laws, and not of men; and judicial decisions of the highest tribunal, by the known course of the common law, are considered, as establishing the true construction of the laws, which are brought into controversy before it. The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice, or will of particular judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

§ 378. This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mete discretion, and to the abandonment of all the just checks upon judicial authority. It would seem impossible, then, to presume, if the people intended to introduce a new rule in respect to the decisions of the Supreme Court, and to limit the nature and operations of their judgments in a manner wholly unknown to the common law, and to our existing jurisprudence, that some indication of that intention should not be apparent on the face of the constitution. We find, (Art. 4,) that the constitution has declared, that full faith and credit shall be given in each state to the judicial proceedings of every other state. But no like provision has been made in respect to the judgments of the courts of the United States, because they were plainly supposed to be of paramount and absolute obligation throughout all the states. If the judgments of the Supreme Court upon constitutional questions are conclusive and binding upon the citizens at large, must they not be equally conclusive upon the states? If the states are parties to that instrument, are not the people of the states also parties?

§ 379. It has been said, “that however true it may be, that the judicial department is, in all questions submitted to it by the forms of the constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the other departments of the government, not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert for ever, and beyond the possible reach of any rightful remedy, the very constitution, which all were instituted to preserve.”10 Now, it is certainly possible, that all the departments of a government may conspire to subvert the constitution of that government, by which they are created. But if they should so conspire, there would still remain an adequate remedy to redress the evil. In the first place, the people, by the exercise of the elective franchise, can easily check and remedy any dangerous, palpable, and deliberate infraction of the constitution in two of the great departments of government; and, in the third department, they can remove the judges, by impeachment, for any corrupt conspiracies. Besides these ordinary remedies, there is a still more extensive one, embodied in the form of the constitution, by the power of amending it, which is always in the power of three fourths of the states. It is a supposition not to be endured for a moment, that three fourths of the states would conspire in any deliberate, dangerous, and palpable breach of the constitution. And if the judicial department alone should attempt any usurpation, congress, in its legislative capacity, has full power to abrogate the injurious effects of such a decision. Practically speaking, therefore, there can be very little danger of any such usurpation or deliberate breach.

§ 380. But it is always a doubtful mode of reasoning to argue from the possible abuse of powers, that they do not exist.11 Let us look for a moment at the consequences, which flow from the doctrine on the other side. There are now twenty-four states in the Union, and each has, in its sovereign capacity, a right to decide for itself in the last resort, what is the true construction of the constitution; what are its powers; and what are the obligations founded on it. We may, then, have, in the free exercise of that right, twentyfour honest, but different expositions of every power in that constitution, and of every obligation involved in it. What one state may deny, another may assert; what one may assert at one time, it may deny at another time. This is not mere supposition. It has, in point of fact, taken place. There never has been a single constitutional question agitated, where different states, if they have expressed any opinion, have not expressed different opinions; and there have been, and, from the fluctuating nature of legislative bodies, it may be supposed? that there will continue to be, cases, in which the same state will at different times hold different opinions on the same question. Massachusetts at one time thought the embargo of 1807 unconstitutional; at another a majority, from the change of parties, was as decidedly the other way. Virginia, in 1810, thought that the Supreme Court was the common arbiter; in 1829 she thought differently.12 What, then, is to become of the constitution, if its powers are thus perpetually to be the subject of debate and controversy? What exposition is to be allowed to be of authority? Is the exposition of one state to be of authority there, and the reverse to be of authority in a neighbouring state, entertaining an opposite exposition? Then, there would be at no time in the United States the same constitution in operation over the whole people. Is a power, which is doubted, or denied by a single state, to be suspended either wholly, or in that state? Then, the constitution is practically gone, as a uniform system, or indeed, as any system at all, at the pleasure of any state. If the power to nullify the constitution exists in a single state, it may rightfully exercise it at its pleasure. Would not this be a far more dangerous and mischievous power, than a power granted by all the states to the judiciary to construe the constitution? Would not a tribunal, appointed under the authority of all, be more safe, than twenty-four tribunals acting at their own pleasure, and upon no common principles and cooperation? Suppose congress should declare war; shall one state have power to suspend it? Suppose congress should make peace; shall one state have power to involve the whole country in war? Suppose the president and senate should make a treaty; shall one state declare it a nullity, or subject the whole country to reprisals for refusing to obey it? Yet, if every state may for itself judge of its obligations under the constitution, it may disobey a particular law or treaty, because it may deem it an unconstitutional exercise of power, although every other state shall concur in a contrary opinion. Suppose congress should lay a tax upon imports burthensome to a particular state, or for purposes, which such state deems unconstitutional, and yet all the other states are in its favour; is the law laying the tax to become a nullity? That would be to allow one state to withdraw a power from the Union, which was given by the people of all the states. That would be to make the general government the servant of twenty-four masters, of different wills and different purposes, and yet bound to obey them all.13

§ 381. The argument, therefore, arising from a possibility of an abuse of power, is, to say the least of it, quite as strong the other way. The constitution is in quite as perilous a state from the power of overthrowing it lodged in every state in the Union, as it can be by being lodged in any department of the federal government. There is this difference, however, in the cases, that if there be federal usurpation, it may be checked by the people of all the states in a constitutional way. If there be usurpation by a single state, it is, upon the theory we are considering, irremediable. Other difficulties, however, attend the reasoning we are considering. When it is said, that the decision of the Supreme Court in the last resort is obligatory, and final “in relation to the authorities of the other departments of the government,” is it meant of the federal government only, or of the states also? If of the former only, then the constitution is no longer the supreme law of the land, although all the state functionaries are bound by ah oath to support it. If of the latter also, then it is obligatory upon the state legislatures, executives, and judiciaries. It binds them; and yet it does not bind the people of the states, or the states in their sovereign capacity. The states may maintain one construction of it, and the functionaries of the state are bound by another. If, on the other hand, the state functionaries are to follow the construction of the state, in opposition to the construction of the Supreme Court, then the constitution, as actually administered by the different functionaries, is different; and the duties required of them may be opposite, and in collision with each other. If such a state of things is the just result of the reasoning, may it not justly be suspected, that the reasoning itself is unsound?

§ 382. Again; it is a part of this argument, that the judicial interpretation is not binding “in relation to the rights of the parties to the constitutional compact.” “On any other hypothesis the delegation of judicial power would annul the authority delegating it.” Who then are the parties to this contract? Who did delegate the judicial power? Let the instrument answer for itself. The people of the United States are the parties to the constitution. The people of the United States delegated the judicial rower. It was not a delegation by the people of one state, but by the people of all the states. Why then is not a judicial decision binding in each state, until all, who delegated the power, in some constitutional manner concur in annulling or overruling the decision? Where shall we find the clause, which gives the power to each state to construe the constitution for all; and thus of itself to supersede in its own favour the construction of all the rest? Would not this be justly deemed a delegation of judicial power, which would annul the authority delegating it?14 Since the whole people of the United States have concurred in establishing the constitution, it would seem most consonant with reason to presume, in the absence of all contrary stipulations, that they did not mean, that its obligatory force should depend upon the dictate or opinion of any single state. Even under the confederation, (as has been already stated,) it was unanimously resolved by congress, that “as state legislatures are not competent to the making of such compacts or treaties, [with foreign states,] so neither are they competent in that capacity authoritatively to decide on, or ascertain the construction and sense of them.” And the reasoning, by which this opinion is supported, seems absolutely unanswerable.15

If this was true under such an instrument, and that construction was avowed before the whole American people, and brought home to the knowledge of the state legislatures, how can we avoid the inference, that under the constitution, where an express judicial power in cases arising under the constitution was provided for, the people must have understood and intended, that the states should have no right to question, or control such judicial interpretation?

§ 383. In the next place, as the judicial power extends to all cases arising under the constitution, and that constitution is declared to be the supreme law, that supremacy would naturally he construed to extend, not only over the citizens, but over the states.16 This, however, is not left to implication, for it is declared to be the supreme law of the land, “any thing in the constitution or laws of any state to the contrary notwithstanding.” The people of any state cannot, then, by any alteration of their state constitution, destroy, or impair that supremacy. How, then, can they do it in any other less direct manner? Now, it is the proper function of the judicial department to interpret laws, and by the very terms of the constitution to interpret the supreme law. Its interpretation, then, becomes obligatory and conclusive upon all the departments of the federal government, and upon the whole people, so far as their rights and duties are derived from, or affected by that constitution. If then all the departments of the national government may rightfully exercise all the powers, which the judicial department has, by its interpretation, declared to be granted by the constitution; and are prohibited from exercising those, which are thus declared not to be granted by it, would it not be a solecism to hold, notwithstanding, that such rightful exercise should not be deemed the supreme law of the land, and such prohibited powers should still be deemed granted? It would seem repugnant to the first notions of justice, that in respect to the same instrument of government, different powers, and duties, and obligations should arise, and different rules should prevail, at the same time among the governed, from a right of interpreting the same words (manifestly used in one sense only) in different, nay, in opposite senses. If there ever was a case, in which uniformity of interpretation might well be deemed a necessary postulate, it would seem to be that of a fundamental law of a government. It might otherwise follow, that the same individual, as a magistrate, might be bound by one rule, and in his private capacity by another, at the very same moment.

§ 384. There would be neither wisdom nor policy in such a doctrine; and it would deliver over the constitution to interminable doubts, founded upon the fluctuating opinions and characters of those, who should, from time to time, be called to administer it. Such a constitution could, in no just sense, be deemed a law, much less a supreme or fundamental law. It would have none of the certainty or universality, which are the proper attributes of such a sovereign rule. It would entail upon us all the miserable servitude, which has been deprecated, as the result of vague and uncertain jurisprudence. Misera est servitus, ubi jus est vagum aut incertum. It would subject us to constant dissensions, and perhaps to civil broils, from the perpetually recurring conflicts upon constitutional questions. On the other hand, the worst, that could happen from a wrong decision of the judicial department, would be, that it might require the interposition of congress, or, in the last resort, of the amendatory power of the states, to redress the grievance.

§ 385. We find the power to construe the constitution expressly confided to the judicial department, without any limitation or qualification, as to its conclusiveness. Who, then, is at liberty, by general implications, not from the terms of the instrument, but from mere theory, and assumed reservations of sovereign right, to insert such a limitation or qualification? We find, that to produce uniformity of interpretation, and to preserve the constitution, as a perpetual bond of union, a supreme arbiter or authority of construing is, if not absolutely indispensable, at least, of the highest possible practical utility and importance. Who, then, is at liberty to reason down the terms of the constitution, so as to exclude their natural force and operation?

§ 386. We find, that it is the known course of the judicial department of the several states to decide in the last resort upon all constitutional questions arising in judgment; and that this has always been maintained as a rightful exercise of authority, and conclusive upon the whole state.17 As such, it has been constantly approved by the people, and never withdrawn from the courts by any amendment of their constitutions, when the people have been called to revise them. We find, that the people of the several states have constantly relied upon this last judicial appeal, as the bulwark of their state rights and liberties; and that it is in perfect consonance with the whole structure of the jurisprudence of the common law. Under such circumstances, is it not most natural to presume, that the same rule was intended to be applied to the constitution of the United States? And when we find, that the judicial department of the United States is actually entrusted with a like power, is it not an irresistible presumption, that it had the same object, and was to have the same universally conclusive effect? Even under the confederation, an instrument framed with infinitely more jealousy and deference for state rights, the judgments of the judicial department appointed to decide controversies between states was declared to be final and conclusive; and the appellate power in other cases was held to overrule all state decisions and state legislation.18

§ 387. If, then, reasoning from the terms of the constitution, and the known principles of our jurisprudence, the appropriate conclusion is, that the judicial department of the United States is, in the last resort, the final expositor of the constitution, as to all questions of a judicial nature; let us see, in the next place, how far this reasoning acquires confirmation from the past history of the constitution, and the practice under it.

§ 388. That this view of the constitution was taken by its framers and friends, and was submitted to the people before its adoption, is positively certain. The Federalist 19 says, “Under the national government, treaties and articles of treaties as well as the law of nations, will always be expounded in one sense, and executed in the same manner; whereas, adjudications on the same points and questions in thirteen states, or three or four confederacies, will not always accord, or be consistent; and that as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws, which may affect and influence them. The wisdom of the convention in committing such questions to the jurisdiction and judgment of courts appointed by, and responsible only to, one national government, cannot be too much commended.” Again, referring to the objection taken, that the government was national, and not a confederacy of sovereign states, and after stating, that the jurisdiction of the national government extended to certain enumerated objects only, and left the residue to the several states, it proceeds to say:20 “It is true, that in controversies between the two jurisdictions (state and national) the tribunal, which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made according to the rules of the constitution, and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact. And that it ought to be established under the general, rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.”21

§ 389. The subject is still more elaborately considered in another number,22 which treats of the judicial department in relation to the extent of its powers. It is there said, that there ought always to be a constitutional method of giving efficacy to constitutional provisions; that if there are such things as political axioms, the propriety of the judicial department of a government being coextensive with its legislature, may be ranked among the number;23 that the mere necessity of uniformity in the interpretation of the national law decides the question; that thirteen independent courts of final jurisdiction over the same causes is a hydra of government, from which nothing but contradiction and confusion can proceed; that controversies between the nation and its members can only, be properly referred to the national tribunal; that the peace of the whole ought not to be left at the disposal of a part; and that whatever practices may have a tendency to disturb the harmony of the states, are proper objects of federal superintendence and control.24

§ 390. The same doctrine was constantly avowed in the state conventions, called to ratify the constitution. With some persons it formed a strong objection to the constitution; with others it was deemed vital to its existence and value.25 So, that it is indisputable, that the constitution was adopted under a full knowledge of this exposition of its grant of power to the judicial department.26

§ 391. This is not all. The constitution has now been in full operation more than forty years; and during this period the Supreme Court has constantly exercised this power of final interpretation in relation, not only to the constitution, and laws of the Union, but in relation to state acts and state constitutions and laws, so far as they affected the constitution, and laws, and treaties of the United States.27 Their decisions upon these grave questions have never been repudiated, or impaired by congress.28 No state has ever deliberately or forcibly resisted the execution of the judgments founded upon them; and the highest state tribunals have, with scarcely a single exception, acquiesced in, and, in most instances, assisted in executing them.29 During the same period, eleven states have been admitted into the Union, under a full persuasion, that the same power would be exerted over them. Many of the states have, at different times within the same period, been called upon to consider, and examine the grounds, on which the doctrine has been maintained, at the solicitation of other states which felt, that it operated injuriously, or might operate injuriously upon their interests. A great majority of the states, which have been thus called upon in their legislative capacities to express opinions, have maintained the correctness of the doctrine, and the beneficial effects of the powers, as a bond of union, in terms of the most unequivocal nature.30 Whenever any amendment has been proposed to change the tribunal, and substitute another common umpire or interpreter, it has rarely received the concurrence of more than two or three states, and has been uniformly rejected by a great majority, either silently, or by an express dissent. And instances have occurred, in which the legislature of the same state has, at different times, avowed opposite opinions, approving at one time, what it had denied, or at least questioned at another. So, that it may be asserted with entire confidence, that for forty years three fourths of all the states composing the Union have expressly assented to, or silently approved, this construction of the constitution, and have resisted every effort to restrict, or alter it. A weight of public opinion among the people for such a period, uniformly thrown into one scale so strongly, and so decisively, in the midst of all the extraordinary changes of parties, the events of peace and of war, and the trying conflicts of public policy and state interests, is perhaps unexampled in the history of all other free governments.31 It affords, as satisfactory a testimony in favour of the just and safe operation of the system, as can well be imagined; and, as a commentary upon the constitution itself, it is as absolutely conclusive, as any ever can be, and affords the only escape from the occurrence of civil conflicts, and the delivery over of the subject to interminable disputes.32

§ 392. In this review of the power of the judicial department, upon a question of its supremacy in the interpretation of the constitution, it has not been thought necessary to rely on the deliberate judgments of that department in affirmance of it. But it may be proper to add that the judicial department has not only constantly exercised this right of interpretation in the last resort; but its whole course of reasonings and operation has proceeded upon the ground, that, once made, the interpretation was conclusive, as well upon the states, as the people.33

§ 393. But it may be asked, as it has been asked, what is to be the remedy, if there be any misconstruction of the constitution on the part of the government of the United States, or its functionaries, and any powers exercised by them, not warranted by its true meaning? To this question a general answer may be given in the words of its early expositors: “The same, as if the state legislatures should violate their respective constitutional authorities.” In the first instance, if this should be by congress, “the success of the usurpation will depend on the executive and judiciary departments, which are to expound, and give effect to the legislative acts; and, in the last resort, a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal, than of the state legislatures, for this plain reason, that, as every act of the former will be an invasion of the rights of the latter, these will ever be ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the state legislatures and the people, interested in watching the conduct of the former, violations of the state constitution are more likely to remain unnoticed and unredressed.”34

§ 394. In the next place, if the usurpation should be by the president, an adequate check may be generally found, not only in the elective franchise, but also in the controlling power of congress, in its legislative or impeaching capacity, and in an appeal to the judicial department. In the next place, if the usurpation should be by the judiciary, and arise from corrupt motives, the power of impeachment would remove the offenders; and in most other cases the legislative and executive authorities could interpose an efficient barrier. A declaratory or prohibitory law would, in many cases, be a complete remedy. We have, also, so far at least as a conscientious sense of the obligations of duty, sanctioned by an oath of office, and an indissoluble responsibility to the people for the exercise and abuse of power, on the part of different departments of the government, can influence human minds, some additional guards against known and deliberate usurpations; for both are provided for in the constitution itself. “The wisdom and the discretion of congress, (it has been justly observed,) their identity with the people, and the influence, which their constituents possess at elections, are, in this, as in many other instances, as, for example, that of declaring, war; the sole restraints; on this they have relied, to secure them from abuse. They are the restraints, on which the people must often solely rely in all representative governments.”35

§ 395. But in the next place, (and it is that, which would furnish a case of most difficulty and danger, though it may fairly be presumed to be of rare occurrence,) if the legislature, executive, and judicial departments should all concur in a gross usurpation, there is still a peaceable remedy provided by the constitution. It is by the power of amendment, which may always be applied at the will of three fourths of the states. If, therefore, there should be a corrupt cooperation of three fourths of the states for permanent usurpation, (a case not to be supposed, or if supposed, it differs not at all in principle or redress from the case of a majority of a state or nation having the same intent,) the case is certainly irremediable under any known forms of the constitution. The states may now by a constitutional amendment, with few limitations, change the whole structure and powers of the government, and thus legalize any present excess of power. And the general right of a society in other cases to change the government at the will of a majority of the whole people, in any manner, that may suit its pleasure, is undisputed, and seems indisputable. If there be any remedy at all for the minority in such cases, it is a remedy never provided for by human institutions. It is by a resort to the ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.36

§ 396. As a fit conclusion to this part of these commentaries, we cannot do better than to refer to a confirmatory view, which has been recently presented to the public by one of the framers of the constitution, who is now, it is believed, the only surviving member of the federal convention, and who, by his early as well as his later labours, has entitled himself to the gratitude of his country, as one of its truest patriots, and most enlightened friends. Venerable, as he now is, from age and character, and absolved from all those political connexions, which may influence the judgment, and mislead the mind, he speaks from his retirement in a voice, which cannot be disregarded, when it instructs us by its profound reasoning, or admonishes us of our dangers by its searching appeals. However particular passages may seem open to criticism, the general structure of the argument stands on immovable foundations, and can scarcely perish, but with the constitution, which it seeks to uphold.37

Footnotes:
1.    The point was very strongly argued, and much considered, in the case of Cohens v. Virginia, in the Supreme Court in 1821, (6 Wheat. R. 264.) The whole argument, as well as the judgment, deserves an attentive reading. The result, to which the argument against the existence of a common arbiter leads, is presented in a very forcible manner by Mr. Chief Justice Marshall, in pages 376, 377.

“The questions presented to the court by the two first points made at the bar are of great magnitude, and may be truly said vitally to affect the Union. They exclude the inquiry, whether the constitution and laws of the United States have been violated by the judgment, which the plaintiffs in error seek to review; and maintain, that, admitting such violation, it is not in the power of the government to apply a corrective. They maintain, that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts, which maybe made by a part against the legitimate powers of the whole; and that the government is reduced to the alternative of submitting to such attempts, or of resisting them by force. They maintain, that the constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised in the last resort by the courts of every state in the Union. That the constitution, laws, and treaties, may receive as many constructions, as there are states; and that this is not a mischief, or, if a mischief, is irremediable. These abstract propositions are to be determined; for he, who demands decision without permitting inquiry, affirms, that the decision he asks does not depend on inquiry.

“If such be the constitution, it is the duty of this court to bow with respectful submission to its provisions. If such be not the constitution, it is equally the duty of this court to say so; and to perform that task, which the American people have assigned to the judicial department.”

2.    See the Federalist, No. 33.
3.    Mr. Jefferson carries his doctrine much farther, and holds, that each department of government has an exclusive right, independent of the judiciary, to decide for itself, as to the true construction of the constitution. ” My construction,” says he, ” is very different from that, you quote. It is, that each department of the government is truly independent of the others, and has an equal right to decide for itself, what is the meaning of the constitution in the laws submitted to its action, and especially, when it is to act ultimately and without appeal.” And he proceeds to give examples, in which he disregarded, when president, the decisions of the judiciary, and refers to the alien and sedition laws, and the case of Marbury v. Madison, (1 Cranch, 137.) 4 Jefferson’s Corresp. 316, 317. See also 4 Jefferson’s Corresp. 27; Id. 75; Id. 372, 374.
4.    See 4 Elliot’s Debates, 315 to 320.
5.    The Federalist, No. 44. — Mr. Madison, in the Virginia Report of Jan. 1800, has gone into a consideration of this point, and very properly suggested, that there may be infractions of the constitution not within the reach of the judicial power, or capable of remedial redress through the instrumentality of courts of law. But we cannot agree with him, that in such cases, each state may take the construction of the constitution into its own hands, and decide for itself in the last resort; much less, that in a case of judicial cognizance, the decision is not binding on the states. See Report p. 6, 7, 8, 9.
6.    Dane’s App. §44, 45, p. 52 to 59. — It affords me very sincere gratification to quote the following passage from the learned Commentaries of Mr. Chancellor Kent, than whom very few judges in our country are more profoundly versed in constitutional law. After enumerating the judicial powers in the constitution, he proceeds to observe: “The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from the union of these states in one national government, and they may be considered as requisite to its existence. The judicial power in every government must be co-extensive with the power of legislation. Were there no power to interpret, pronounce, and execute the law, the government would either perish through its own imbecility, as was the case with the old confederation, or other powers must be assumed by the legislative body to the destruction of liberty.” 1 Kent’s Comm. (2d ed. p. 296,) Lect. 14, 277.
7.    4 Dane’s Abridg. ch. 187. art. 20, §15, p. 590; Dane’s App. §42, p. 49, 50; §44, p. 52, 53; 1 Wilson’s Lectures, 461, 462, 463.
8.    See Address of Congress, Feb. 1787; Journals of Congress, p. 33; Rawle on the Constitution, App. 2, p. 316.
9.    Bacon’s Abridgment, Statute. H.
10.    Madison’s Virginia Report, Jan. 1800, p. 8, 9.
11.    See Anderson v. Dunn, 6 Wheaton’s R. 204, 232.
12.    Dane’s App. §44, 45, p. 52 to 59, §54, p. 66; 4 Elliot’s Debates, 338, 339.
13.    Webster’s Speeches, 420; 4 Elliots Debates, 339.
14.    There is vast force in the reasoning Mr. Webster on this subject, in his great Speech on Mr. Foot’s Resolutions in the senate, in 1830, which well deserves the attention of every statesman and jurist. See 4 Elliot’s Debates, 338, 339, 343, 344, and Webster’s Speeches, p. 407, 408, 418, 419, 420; Id. 430, 431, 432.
15.    Journals of Congress, April 13, 1787, p. 32, etc. Rawle on the Constitution, App. 2, p. 316, etc.
16.    The Federalist, No. 33.
17.    2 Elliot’s Debates, 248, 328, 329, 395; Grimke’s Speech in 1828, p. 25, etc.; Dane’s App. § 44, 45, p. 52 to 59; Id. § 48, p. 62.
18.    Dane’s App. §52, p. 65; Penhallow v. Doane, 3 Dall. 54; Journals of Congress, 1779, Vol. 5, p. 86 to 90; 4 Cranch, 2.
19.    The Federalist, No. 3.
20.    The Federalist, No. 39.
21.    See also The Federalist, No. 33.
22.    The Federalist, No. 80.
23.    The same remarks will be found pressed with great force by Mr. Chief Justice Marshall, in delivering the opinion of the court in Cohens v. Virginia, (6 Wheat. 264, 384.)
24.    In The Federalist, No. 78 and 82, the same course of reasoning is pursued, and the final nature of the appellate jurisdiction of the Supreme Court is largely insisted on. In the Convention of Connecticut, Mr. Ellsworth (afterwards Chief Justice of the United States) used the following language: “This constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is the constitutional check. If the United States go beyond their powers; if they make a law, which the constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it void. On the other hand, if the states go beyond their limits; if they make a law, which is a usurpation upon the general government, the law is void, and upright and independent judges will declare it. Still, however, if the United States and the individual states will quarrel; if they want to fight, they may do it, and no frame of government can possibly prevent it.” In the debates in the South Carolina legislature, when the subject of calling a convention to ratify or reject the constitution was before them,* Mr. Charles Pinckney (one of the members of the convention) avowed the doctrine in the strongest terms. “That a supreme federal jurisdiction was indispensable,” said he, “cannot be denied. It is equally true, that in order to ensure the administration of justice, it was necessary to give all the powers, original as well as appellate, the constitution has enumerated. Without it we could not expect a due observance of treaties; that the state judiciaries would confine themselves within their proper sphere; or that a general sense of justice would pervade the Union, etc. That to ensure these, extensive authorities were necessary; particularly so, were they in a tribunal, constituted as this is, whose duty it would be, not only to decide all national questions, which should arise within the Union; but to control and keep the state judiciaries within their proper limits, whenever they should attempt to interfere with the power.”
*    Debates in 1788, printed by A. E. Miller, 1831, Charleston, p. 7.
25.    It would occupy too much space to quote the passages at large. Take for an instance, in the Virginia debates, Mr. Madison’s remarks. ” It may be a misfortune, that in organizing any government, the explication of its authority should be left to any of its co-ordinate branches. There is no example in any country, where it is otherwise. There is no new policy in submitting it to the judiciary of the United States.” 2 Elliot’s Debates, 390. See also Id. 380, 383, 395, 400, 404, 418. See also North Carolina Debates, 3 Elliot’s Debates, 125, 127, 128, 130, 133, 134, 139, 141, 142, 143; Pennsylvania Debates, 3 Elliot’s Debates, 280, 313. Mr. Luther Martin, in his letter to the Maryland Convention, said: ” By the third article the judicial power is vested in one Supreme Court, etc. These courts, and these only, will have a right to decide upon the laws of the United States, and all questions arising upon their construction, etc. Whether, therefore, any laws, etc. of congress, or acts of its president, etc. are contrary to, or warranted by the constitution, rests only with the judges, who are appointed by congress to determine; by whose determinations every state is bound.” 3 Elliot’s Debates, 44, 45; Yates’s Minutes, etc. See also The Federalist, No. 78.
26.    See Mr. Pinckney’s Observations cited in Grimke’s Speech in 1828, p. 86, 87.
27.    Dane’s App. §44, p. 53, 54, 55; Grimke’s Speech, 1828, p. 34 to 42.
28.    In the debate in the first congress organized under the constitution, the same doctrine was openly avowed, as indeed it has constantly been by the majority of congress at all subsequent periods. See 1 Lloyd’s Debates, 219 to 599; 2 Lloyd’s Debates, 284 to 327.
29.    Chief Justice M’Kean, in Commonwealth v.Cobbett (3 Dall. 473,) seems to have adopted a modified doctrine, and to have held, that the Supreme Court was not the common arbiter; but if not, the only remedy was, not by a state deciding for itself, as in case of a treaty between independent governments, but by a constitutional amendment by the states. But see, on the other hand, the opinion of Chief Justice Spencer, in Andrews v. Montgomery, 19 Johns. R. 164.
30.    Massachusetts, in her Resolve of February 12, 1799, (p. 57,) in answer to the Resolutions of Virginia of 1798, declared, ” that the decision of all cases in law and equity, arising under the constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States;” and ” that the people in that solemn compact, which is declared to be the supreme law of the land, have not constituted the state legislatures the judges of the acts or measures of the federal government, but have confided to them the power of proposing such amendments” etc.; and “that by this construction of the constitution, an amicable and dispassionate remedy is pointed out for any evil, which experience may prove to exist, and the peace and prosperity of the United States may be preserved without interruption.” See also Dane’s App. §44, p. 56; Id. 80. Mr. Webster’s Speech in the Senate, in 1830, contains an admirable exposition of the same doctrines. Webster’s Speeches, 410, 419, 420, 421. In June, 1821. the House of Representatives of NewHampshire passed certain resolutions. (172 yeas to 9 nays,) drawn up (as is understood) by one of her most distinguished statesmen, asserting the same doctrines. Delaware, in January, 1831, and Connecticut and Massachusetts held the same, in May, 1831.
31.    Virginia and Kentucky denied the power in 1793 and 1800; Massachusetts, Delaware, Rhode-Island, New-York, Connecticut, NewHampshire, and Vermont disapproved of the Virginia resolutions, and passed counter resolutions. (North American Review, October, 1830, p. 500.) No other state appears to have approved the Virginia resolutions. (Ibid.) In 1810 Pennsylvania proposed the appointment of another tribunal than the Supreme Court to determine disputes between the general and state governments. Virginia, on that occasion, affirmed, that the Supreme Court was the proper tribunal; and in that opinion New-Hampshire, Vermont, North-Carolina, Maryland, Georgia, Tennessee, Kentucky, and New-Jersey concurred; and no one state approved of the amendment (North American Review, October, 1830, p. 507 to 512; Dane’s App. §55, p. 67; 6 Wheat. R. 358, note.) Recently, in March, 1831, Pennsylvania has resolved, that the 25th section of the judiciary act of 1789, ch. 20, which gives the Supreme Court appellate jurisdiction from state courts on constitutional questions, is authorized by the constitution, and sanctioned by experience, and also all other laws empowering the federal judiciary to maintain the supreme laws.
32.    Upon this subject the speech of Mr. Webster in the Senate, in 1830, presents the whole argument in a very condensed and powerful form. The following passage is selected, as peculiarly appropriate:

“The people, then, sir, erected this government. They gave it a constitution, and in that constitution they have enumerated the powers which they bestow on it. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of such powers, as are granted; and all others, they declare, are reserved to the states, or the people. But, sir, they have not stopped here. If they had, they would have accomplished but half their work. No definition can be so clear, as to avoid possibility of doubt; no limitation so precise, as to exclude all uncertainty. Who, then, shall construe this grant of the people? Who shall interpret their will, where it may be supposed they have left it doubtful? With whom do they repose this ultimate right of deciding on the powers of the government? Sir, they have settled all this in the fullest manner. They have left it, with the government itself, in its appropriate branches. Sir, the very chief end, the main design, for which the whole constitution was framed and adopted, was to establish a government, that should not be obliged to act through state agency, or depend on state opinion and state discretion. The people had had quite enough of that kind of government, under the confederacy. Under that system, the legal action – the application of law to individuals, belonged exclusively to the states. Congress could only recommend – their acts were not of binding force, till the states had adopted and sanctioned them. Are we in that condition still? Are we yet at the mercy of state discretion, and state construction? Sir, if we are, then vain will be our attempt to maintain the constitution, under which we sit.

“But, sir, the people have wisely provided, in the constitution itself, a proper, suitable mode and tribunal for settling questions of constitutional law. There are, in the constitution, grants of powers to Congress; and restrictions on these powers. There are, also, prohibitions on the states. Some authority must, therefore, necessarily exist, having the ultimate jurisdiction to fix and ascertain the interpretation of these grants, restrictions, and prohibitions. The constitution has itself pointed out, ordained, and established that authority. How has it accomplished this great and essential end? By declaring, sir, that ‘ the constitution and the law of the United States, made in pursuance thereof, shall be the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.’

“This, sir, was the first great step. By this, the supremacy of the constitution and laws of the United States is declared. The people so will it. No state law is to be valid, which comes in conflict with the constitution, or any law of the United States passed in pursuance of it. But who shall decide this question of interference? To whom lies the last appeal? This, sir, the constitution itself decides, also, by declaring, ‘that the judicial power shall extend to all cases arising under the constitution and laws of the United States.’ These two provisions, sir, cover the whole ground. They are, in truth, the keystone of the arch. With these, it is a constitution; without them, it is a confederacy. In pursuance of these clear and express provisions, congress established, at its very first session, in the judicial act, a mode for carrying them into full effect, and for bringing all questions of constitutional power to the final decision of the Supreme Court. It then, sir, became a government. It then had the means of self-protection; and, but for this, it would, in all probability, have been now among things, which are past. Having constituted the government, and declared its powers, the people have further said, that since somebody must decide on the extent of these powers, the government shall itself decide; subject, always, like other popular governments, to its responsibility to the people. And now, sir, I repeat, how is it, that a state legislature acquires any power to interfere? Who, or what, gives them the right to say to the people, ‘ We, who are your agents and servants for one purpose, will undertake to decide, that your other agents and servants, appointed by you for another purpose, have transcended the authority you gave them!’ The reply would be, I think, not impertinent -‘ Who made you a judge over another’s servants? To their own masters they stand or fall.’

“Sir, I deny this power of state legislatures altogether. It cannot stand the test of examination. Gentlemen may say, that in an extreme case, a state government might protect the people from intolerable oppression. Sir, in such a case, the people might protect themselves, without the aid of the state governments. Such a case warrants revolution. It must make, when it comes, a law for itself. A nullifying act of a state legislature cannot alter the case, nor make resistance any more lawful. In maintaining these sentiments, sir, I am but asserting the rights of the people. I state what they have declared, and insist on their right to declare it. They have chosen to repose this power in the general government, and I think it my duty to support it, like other constitutional powers.”

See also 1 Wilson’s Law Lectures, 461, 462. – It is truly surprising, that Mr. Vice-President Calhoun, in his Letter of the 28th of August, 1832, to governor Hamilton, (published while the present work was passing through the press,) should have thought, that a proposition merely offered in the convention, and referred to a committee for their consideration, that ” the jurisdiction of the Supreme Court shall be extended to all controversies between the United States and an individual state, or the United States and the citizens of an individual state,”* should, in connexion with others giving a negative on state laws, establish the conclusion, that the convention, which framed the constitution, was opposed to granting the power to the general government, in any form, to exercise any control whatever over a state by force, veto, or judicial process, or in any other form. This clause for conferring jurisdiction on the Supreme Court in controversies between the United States and the states, must, like the other controversies between states, or between individuals, referred to the judicial power, have been intended to apply exclusively to suits of a civil nature, respecting property, debts contracts, or other claims by the United States against a state; and not to the decision of constitutional questions in the abstract. At a subsequent period of the convention, the judicial power was expressly extended to all cases arising under the constitution, laws, and treaties, of the United States, and to all controversies, to which the United States should be a party,** thus covering the whole ground of a right to decide constitutional questions of a judicial nature. And this, as the Federalist informs us, was the substitute for a negative upon state laws, and the only one, which was deemed safe or efficient. The Federalist No. 80.
*    Journal of Convention, 20th Aug. p. 235.
**    Journal of Convention, 27th Aug. p. 298.
33.    Martin v. Hunter, I Wheat. R. 304, 334, etc. 342 to 348; Cohens v. The State of Virginia,6 Wheat. R. 264, 376, 377 to 392; Id. 413 to 432; Bank of Hamilton v. Dudley, 2 Peters’s R. 524; Ware v. Hylton, 3 Dall. 199; I Cond. R. 99, 112. The language of Mr. Chief Justice Marshall, in delivering the opinion of the court in Cohens v. Virginia, presents the argument in favour of the jurisdiction of the judicial department in a very forcible manner.

“While weighing arguments drawn from the nature of government, and from the general spirit of an instrument, and urged for the purpose of narrowing the construction, which the words of that instrument seem to require, it is proper to place in the opposite scale those principles, drawn from the same sources, which go to sustain the words in their full operation and natural import. One of these, which has been pressed with great force by the counsel for the plaintiffs in error, is, that the judicial power of every well constituted government must be coextensive with the legislative, and must be capable of deciding every judicial question, which grows out of the constitution and laws.

“If any proposition may be considered as a political axiom, this, we think, may be so considered. In reasoning upon it, as an abstract question, there would, probably, exist no contrariety of opinion respecting it. Every argument, proving the necessity of the department, proves also the propriety of giving this extent to it. We do not mean to say, that the jurisdiction of the courts of the Union should be construed to be coextensive with the legislative, merely because it is fit, that it should be so; but we mean to say, that this fitness furnishes an argument in construing the constitution, which ought never to be overlooked, and which is most especially entitled to consideration, when we are inquiring, whether the words of the instrument, which purport to establish this principle, shall be contracted for the purpose of destroying it.

“The mischievous consequences of the construction, contended for on the part of Virginia, are also entitled to great consideration. It would prostrate, it has been said, the government and its laws at the feet of every state in the Union. And would not this be its effect? What power of the government could be executed by its own means, in any state disposed to resist its execution by a course of legislation? The laws must be executed by individuals acting within the several states. If these individuals may be exposed to penalties, and if the courts of the Union cannot correct the judgments, by which these penalties may be enforced, the course of the government may be, at any time, arrested by the will of one of its members. Each member will possess a veto on the will of the whole.

“The answer, which has been given to this argument, does not deny its truth, but insists, that confidence is reposed, and may be safely reposed, in the state institutions; and that, if they shall ever become so insane, or so wicked, as to seek the destruction of the government, they may accomplish their object by refusing to perform the functions assigned to them.

“We readily concur with the counsel for the defendant in the declaration, that the cases, which have been put, of direct legislative resistance for the purpose of oppose the acknowledged powers of the government, are extreme cases, and in the hope, that they will never occur; capacity of the government to protect itself and its laws in such cases, would contribute in no inconsiderable degree to their occurrence.

“Let it be admitted, that the cases, which have been put, are extreme and improbable, yet there are gradations of opposition to the laws, far short of those cases, which might have a baneful influence on the affairs of the nation. Different states may entertain different opinions on the true construction of the constitutional powers of congress. We know, that at one time, the assumption of the debts, contracted by the several states during the war of our revolution, was deemed unconstitutional by some of them. We know, too, that at other times, certain taxes, imposed by congress, have been pronounced unconstitutional. Other laws have been questioned partially, while they were supported by the great majority of the American people. We have no assurance, that we shall be less divided, than we have been. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert, that the judicatures of the states will be exempt from the prejudices, by which the legislatures and people are influenced, and will constitute perfectly impartial tribunal. In many states the judges are dependent for office and for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance, which that constitution attaches to the independence of judges, we are the less inclined to suppose, that it can have intended to leave these constitutional questions to tribunals, where this independence may not exist, in all cases where a state shall prosecute an individual, who claims the protection of an act of congress. These prosecutions may take place, even without a legislative act. A person, making a seizure under an act of congress, may be indicted as a trespasser, if force has been employed, and of this a jury may judge. How extensive may be the mischief, if the first decisions in such cases should be final!

“These collisions may take place in times of no extraordinary commotion. But a constitution is framed for ages to come, and is designed to approach immortality, as nearly as human institutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization, as not to contain within itself the means of securing the execution of its own laws against other dangers, than those which occur every day. Courts of justice are the means most usually employed; and it is reasonable to expect, that a government should repose on its own courts, rather than on others. There is certainly nothing in the circumstances, under which our constitution was formed; nothing in the history of the times, which would justify the opinion, that the confidence reposed in the states was so implicit, as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legitimate measures of the Union. The requisitions of congress, under the confederation, were as constitutionally obligatory, as the laws enacted by the present congress. That they were habitually disregarded, is a fact of universal notoriety. With the knowledge of this fact, and under its full pressure, a convention was assembled to change the system. Is it so improbable, that they should confer on the judicial department the power of construing the constitution and laws of the Union in every case, in the last resort, and of preserving them from all violation from every quarter, so far as judicial decisions can preserve them, that this improbability should essentially affect the construction of the new system? We are told, and we are truly told, that the great change, which is to give efficacy to the present system, is its ability to act on individuals directly, instead of acting through the instrumentality of state governments. But, ought not this ability, in reason and sound policy, to he applied directly to the protection of individuals employed in the execution of the laws, as well as to their coercion? Your laws reach the individual without the aid of any other power; why may they not protect him from punishment for performing his duty in executing them?

“The counsel for Virginia endeavour to obviate the force of these arguments by saying, that the dangers they suggest, if not imaginary, are inevitable; that the constitution can make no provision against them; and that, therefore, in construing that instrument, they ought to be excluded from our consideration. This state of things, they say, cannot arise, until there shall be a disposition so hostile to the present political system, as to produce a determination to destroy it; and, when that determination shall be produced, its effects will not be restrained by parchment stipulations. The fate of the constitution will not then depend on judicial decisions. But, should no appeal be made to force, the states can put an end to the government by refusing to act. They have only not to elect senators, and it expires without a struggle.

“It is very true, that, whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make, or to unmake, resides only in the whole body of the people; not in any subdivision of them. The attempt of any of the parts to exercise. it is usurpation, and ought to be repelled by those, to whom the people have delegated their power of repelling it.

“The acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional inability to preserve itself against a section of the nation acting in opposition to the general will.

“It is true, that if all the states, or a majority of them, refuse to elect senators, the legislative powers of the Union will be suspended. But if any one state shall refuse to elect them, the senate will not, on that account, be the less capable of performing all its functions. The argument founded on this fact would seem rather to prove the subordination of the parts to the whole, than the complete independence of any one of them. The framers of the constitution were, indeed, unable to make any provisions, which should protect that instrument against a general combination of the states, or of the people, for its destruction; and, conscious of this inability, they have not made the attempt. But they were able to provide against the operation of measures adopted in any one state, whose tendency might be to arrest the execution of the laws, and this it was the part of true wisdom to attempt. We think they have attempted it.”

See also M’Culloch v. Maryland, (4 Wheat. 316, 405, 406.) See also the reasoning of Mr. Chief Justice Jay, in Chisholm v. Georgia,(2 Dall. 419, S. C. 2 Peters’s Cond. R. 635, 670 to 675.) Osborn v. Bank of the United States,( 9 Wheat. 738, 818, 819;) and Gibbons v. Ogden,(9 Wheat. 1, 210.)
34.    The Federalist, No. 44; 1 Wilson’s Law Lectures, 461, 462; Dane’s App. §58, p. 68.
35.    Gibbons v. Ogden, 9) Wheat. R. 1, 197. — See also, on the same subject, the observations of Mr. Justice Johnson in delivering the opinion of the court, in Anderson v. Dunn, 6 Wheat. R. 204, 226.
36.    See Webster’s Speeches, p. 408, 409; 1 Black. Comm. 161, 162. See also 1 Tucker’s Black. Comm. App. 73 to 75.
37.    Reference is here made to Mr. Madison’s Letter, dated August, 1830, to Mr. Edward Everett, published in the North American Review for October, 1830. The following extract is taken from p. 537, et seq.

“In order to understand the true character of the constitution of the United States, the error, not uncommon, must be avoided, of viewing it through the medium, either of a consolidated government, or of a confederated government, whilst it is neither the one, nor the other; but a mixture of both. And having, in no model, the similitudes and analogies applicable to other systems of government, it must, more than any other, be its own interpreter according to its text and the facts of the case.

“From these it will be seen, that the characteristic peculiarities of the constitution are, 1, the mode of its formation; 2, the division of the supreme powers of government between the states in their united capacity, and the states in their individual capacities.

“1. It was formed, not by the governments of the component states, as the federal government, for which it was substituted was formed. Nor was it formed by a majority of the people of the United States, as a single community, in the manner of a consolidated government.

“It was formed by the states, that is, by the people in each of the states, acting in their highest sovereign capacity; and formed consequently, by the same authority, which formed the state constitutions.

“Being thus derived from the same source as the constitutions of the states, it has, within each state, the same authority, as the constitution of the state; and is as much a constitution, in the strict sense of the term, within its prescribed sphere, as the constitutions of the states are, within their respective spheres: but with this obvious and essential difference, that being a compact among the states in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it cannot be altered, or annulled at the will of the states individually, as the constitution of a state may. be at its individual will.

“2. And that it divides the supreme powers of government, between the government of the United States, and the governments of the individual states; is stamped on the face of the instrument; the powers of war and of taxation, of commerce and of treaties, and other enumerated powers vested in the government of the United States, being of as high and sovereign a character, as any of the powers reserved to the state governments.

“Nor is the government of the United States, created by the constitution, less a government in the strict sense of the term, within the sphere of its powers, than the governments created by the constitutions of the states are, within their several spheres. It is, like them, organized into legislative, executive, and judiciary departments. It operates, like them, directly on persons and things. And, like them, it has at command a physical force for executing the powers committed to it. The concurrent operation in certain cases is one of the features marking the peculiarity of the system.

“Between these different constitutional governments, the one operating in all the states, the others operating separately in each, with the aggregate powers of government divided between them, it could not escape attention, that controversies would arise concerning the boundaries of jurisdiction; and that some provision ought to be made for such occurrences. A political system, that does not provide for a peaceable and authoritative termination of occurring controversies, would not be more than the shadow of a government; the object and end of a real government being, the substitution of law and order for uncertainty, confusion, and violence.

“That to have left a final decision, in such cases, to each of the states, then thirteen, and already twenty-four, could not fail to make the constitution and laws of the United States different in different states, was obvious; and not less obvious, that this diversity of independent decisions must altogether distract the government of the union, and speedily put an end to the union itself. A uniform authority of the laws, is in itself a vital principle. Some of the most important laws could not be partially executed. They must be executed in all the states, or they could be duly executed in none. An impost, or an excise, for example, if not in force in some states, would be defeated in others. It is well known, that this was among the lessons of experience, which had a primary influence in bringing about the existing constitution. A loss of its general authority would moreover revive the exasperating questions between the states holding ports for foreign commerce, and the adjoining states without them; to which are now added, all the inland states, necessarily carrying on their foreign commerce through other states.

“To have made the decisions under the authority of the individual states, coordinate, in all cases, with decisions under the authority of the United States, would unavoidably produce collisions incompatible with the peace of society, and with that regular and efficient administration, which is of the essence of free governments. Scenes could not be avoided, in which a ministerial officer of the United States, and the correspondent officer of an individual state, would have rencounters in executing conflicting decrees; the result of which would depend on the comparative force of the local posses attending them; and that, a casualty depending on the political opinions and party feelings in different states.

“To have referred every clashing decision, under the two authorities, for a final decision, to the states as parties to the constitution, would be attended with delays, with inconveniences, and with expenses, amounting to a prohibition of the expedient; not to mention its tendency to impair the salutary veneration for a system requiring such frequent inter positions, nor the delicate questions, which might present themselves as to the form of stating the appeal, and as to the quorum for deciding it.

“To have trusted to negotiation for adjusting disputes between the government of the United States and the state governments, as between independent and separate sovereignties, would have lost sight altogether of a constitution and government for the Union; and opened a direct road from a failure of that resort, to the ultima ratio between nations wholly independent of, and alien to each other. If the idea had its origin in the process of adjustment between separate branches of the same government, the analogy entirely fails. In the case of disputes between independent parts of the same government, neither part being able to consummate its will, nor the government to proceed without a concurrence of the parts, necessity brings about an accommodation. In disputes between a state government, and the government of the United States, the case is practically, as well as theoretically different; each party possessing all the departments of an organized government, legislative, executive, and judiciary; and having each a physical force to support its pretensions. Although the issue of negotiation might sometimes avoid this extremity, how often would it happen among so many states, that an unaccommodating spirit in some would render that resource unavailing? A contrary supposition would not accord with a knowledge of human nature, or the evidence of our own political history.

“The constitution, not relying on any of the preceding modifications, for its safe and successful operation, has expressly declared, on the one hand, 1, ‘that the constitution, and the laws made in pursuance thereof, and all treaties made under the authority of the United States shall be the supreme law of the land; 2, that the judges of every state shall be bound thereby, any thing in the constitution and laws of any state to the contrary notwithstanding; 3, that the judicial power of the United States shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made under their authority, etc.’

“On the other hand, as a security of the rights and powers of the states, in their individual capacities, against an undue preponderance of the powers granted to the government over them in their united capacity, the constitution has relied on, (1,) the responsibility of the senators and representatives in the legislature of the United States to the legislatures and people of the states; (2,) the responsibility of the president to the people of the United States; and ( 3,) the liability of the executive and judicial functionaries of the United States to impeachment by the representatives of the people of the states, in one branch of the legislature of the United States, and trial by the representatives of the states, in the other branch: the state functionaries, legislative, executive, and judicial, being, at the same time, in their appointment and responsibility, altogether independent of the agency or authority of the United States.

“How far this structure of the government of the United States is adequate and safe for its objects, time alone can absolutely determine. Experience seems to have shewn, that whatever may grow out of future stages of our national career, there is, as yet, a sufficient control, in the popular will, over the executive and legislative departments of the government. When the alien and sedition laws were passed, in contravention to the opinions and feelings of the community, the first elections, that ensued, put an end to them. And whatever may have been the character of other acts, in the judgment of many of us it is but true, that they have generally accorded with the views of the majority of the states and of the people. At the present day it seems well understood, that the laws, which have created most dissatisfaction, have had a like sanction without doors: and that, whether continued, varied, or repealed, a like proof will be given of the sympathy and responsibility of the representative body to the constituent body. Indeed, the great complaint now is, against the results of this sympathy and responsibility in the legislative policy of the nation.

“With respect to the judicial power of the United States, and the authority of the Supreme Court in relation to the boundary of jurisdiction between the federal and the state governments, I may be permitted to refer to the thirty-ninth number of the Federalist for the light, in which the subject was regarded by its writer at the period, when the constitution was depending; and it is believed, that the same was the prevailing view then taken of it; that the same view has continued to prevail; and that it does so at this time, notwithstanding the eminent exceptions to it.

“But it is perfectly consistent with the concession of this power to the Supreme Court, in cases falling within the course of its functions, to maintain, that the power has not always been rightly exercised. To say nothing of the period, happily a short one, when judges in their seats did not abstain from intemperate and party harangues, equally at variance with their duty and their dignity; there have been occasional decisions from the bench, which have incurred serious and extensive disapprobation. Still it would seem, that, with but few exceptions, the course of the judiciary has been hitherto sustained by the prominent sense of the nation.

“Those who have denied, or doubted the supremacy of the judicial power of the United States, and denounce at the same time a nullifying power in a state, seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition and execution of the law: nor to the destruction of all equipoise between the federal government and the state governments, if, whilst the functionaries of the federal government are directly or indirectly elected by, and responsible to the states, and the functionaries of the states are in their appointment and responsibility wholly independent of the United States, no constitutional control of any sort belonged to the United States over the states. Under such an organization, it is evident, that it would be in the power of the states, individually, to pass unauthorized laws, and to carry them into complete effect, any thing in the constitution and laws of the United States to the contrary notwithstanding. This would be a nullifying power in its plenary character; and whether it had its final effect, through the legislative, executive, or judiciary organ of the state, would be equally fatal to the constituted relation between the two governments.

“Should the provisions of the constitution as here reviewed, be found not to secure the government and rights of the states, against usurpations and abuses on the part of the United States, the final resort within the purview of the constitution, lies in an amendment of the constitution, according to a process applicable by the states.

“And in the event of a failure of every constitutional resort, and an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil, than resistance and revolution, there can remain but one resort, the last of all; an appeal from the cancelled obligations of the constitutional compact, to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or a compound of both; and it cannot be doubted, that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra constitutional right, to make the appeal.

“This brings us to the expedient lately advanced, which claims for a single state a right to appeal against an exercise of power by the government of the United States, decided by the state to be unconstitutional, to the parties to the constitutional compact; the decision of the state to have the effect of nullifying the act of the government of the United States, unless the decision of the state be reversed by three fourths of the parties.

“The distinguished names and high authorities, which appear to have asserted, and given a practical scope to this doctrine, entitle it to a respect, which it might be difficult otherwise to feel for it.

“If the doctrine were to be understood as requiring the three fourths of the states to sustain, instead of that proportion to reverse the decision of the appealing state, the decision to be without effect during the appeal, it would be sufficient to remark, that this extra-constitutional course might well give way to that marked out by the constitution, which authorizes two thirds of the states to institute, and three fourths to effectuate an amendment of the constitution, establishing a permanent rule of the highest authority, in place of an irregular precedent of construction only.

“But it is understood, that the nullifying doctrine imports, that the decision of the state is to be presumed valid, and that it overrules the law of the United States, unless overruled by three fourths of the states.

“Can more be necessary to demonstrate the inadmissibility of such a doctrine, than, that it puts it in the power of the smallest fraction over one fourth of the United States, that is, of seven states out of twentyfour, to give the law, and even the constitution to seventeen states, each of the seventeen having, as parties to the constitution, an equal right with each of the seven, to expound it, and to insist on the exposition? That the seven might, in particular instances be right, and the seventeen wrong, is more than possible. But to establish a positive and permanent rule giving such a power, to such a minority, over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself.

“It is to be recollected, that the constitution was proposed to the people of the states as a whole, and unanimously adopted by the states as a whole, it being a part of the constitution, that not less than three fourths of the states should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases where peculiar interests were at stake, a proportion even of three fourths is distrusted, and unanimity required to make an alteration.

“When the constitution was adopted as a whole, it is certain, that there were many parts, which, if separately proposed, would have been promptly rejected. It is far from impossible, that every part of a constitution might be rejected by a majority, and yet taken together as a whole, be unanimously accepted. Free constitutions will rarely, if ever, be formed, without reciprocal concessions; without articles conditioned on, and balancing each other. Is there a constitution of a single state out of the twenty-four, that would bear the experiment of having its component parts submitted to the people, and separately decided on?

“What the fate of the constitution of the United States would be, if a small proportion of the states could expunge parts of it particularly valued by a large majority, can have but one answer.

“The difficulty is not removed by limiting the doctrine to cases of construction. How many cases of that sort, involving cardinal provisions of the constitution, have occurred? How many now exist? How many may hereafter spring up? How many might be ingeniously created, if entitled to the privilege of a decision in the mode proposed?

“Is it certain, that the principle of that mode would not reach further than is contemplated? If a single state can, of right, require three fourths of its co-states to overrule its exposition of the constitution, because that proportion is authorized to amend it, would the plea be less plausible, that, as the constitution was unanimously established, it ought to be unanimously expounded?

“The reply to all such suggestions, seems to be unavoidable and irresistible; that the constitution is a compact; that its text is to be expounded, according to the provisions for expounding it – making a part of the compact; and that none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as may accrue, it must grow out of abuses of the compact releasing the sufferers from their fealty to it.”

Sources: Commentaries On the Constitution of the United States by Justice Joseph Story published 1833

See also:
Rights of American Citizens Series:
The Importance of Free Speech and The Free Press in America
Rules of Interpreting the Constitution by Justice Joseph Story
The Consequence of Bad Legal Precedent in American Legislation
When Vain & Aspiring Men Possess the Highest Seats in Government by Samuel AdamsPatrick Henry may well be proved a Prophet as well as a Statesman
Preface To Resolutions of Virginia and Kentucky by James Madison and Thomas Jefferson
Constitution of the United States and it’s Governmental Operations (In Plain English)

Rules of Interpreting the Constitution by Justice Joseph Story

Joseph-Story-1779-1845Rules of Interpreting the Constitution:
JOSEPH STORY was born on September 18, 1779, in Marblehead, Massachusetts. He graduated from Harvard College in 1798. Story read law in the offices of two Marblehead attorneys and was admitted to the bar in 1801. He established a law practice in Salem, Massachusetts. In 1805, Story served one term in the Massachusetts Legislature, and in 1808 he was elected to the United States House of Representatives. After one term, he returned to the Massachusetts Lower House, and in 1811 he was elected Speaker. On November 18, 1811, President James Madison nominated Story to the Supreme Court of the United States. The Senate confirmed the appointment on February 3, 1812. At the age of thirty-two, Story was the youngest person ever appointed to the Supreme Court. While on the Supreme Court, Story served as a delegate to the Massachusetts Constitutional Convention of 1820 and was a Professor of Law at Harvard, where he wrote a series of nine commentaries on the law, each of which was published in several editions. Story served on the Supreme Court for thirty-three years. He died on September 10, 1845, at the age of sixty-five.

Rules of Interpretation: Note, sorry the footnote links aren’t working right yet I am still learning, please bear with me.

§ 397. IN our future commentaries upon the constitution we shall treat it, then, as it is denominated in the instrument itself, as a CONSTITUTION of government, ordained and established by the people of the United States for themselves and their posterity.1 They have declared it the supreme law of the land. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of certain powers, and reserved all others to the states or to the people. It is a popular government. Those who administer it are responsible to the people. It is as popular, and Just as much emanating from the people, as the state governments. It is created for one purpose; the state governments for another. It may be altered, and amended, and abolished at the will of the people. In short, it was made by the people, made for the people, and is responsible to the people.2

§ 398. In this view of the matter, let us now proceed to consider the rules, by which it ought to be interpreted; for, if these rules are correctly laid down, it will save us from many embarrassments in examining and defining its powers. Much of the difficulty, which has arisen in all the public discussions on this subject, has had its origin in the want of some uniform rules of interpretation, expressly or tacitly agreed on by the disputants. Very different doctrines on this point have been adopted by different commentators; and not unfrequently very different language held by the same parties at different periods. In short, the rules of interpretation have often been shifted to suit the emergency; and the passions and prejudices of the day, or the favor and odium of a particular measure, have not unfrequently furnished a mode of argument, which would, on the one hand, leave the constitution crippled and inanimate, or, on other hand, give it an extent and elasticity, subversive of all rational boundaries.

§ 399. Let us, then, endeavor to ascertain, what are the true rules of interpretation applicable to the constitution; so that we may have some fixed standard, by which to measure its powers, and limit its prohibitions, and guard its obligations, and enforce its securities of our rights and liberties.

§ 400. I. The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties. Mr. Justice Blackstone has remarked, that the intention of a law is to be gathered from the words, the context, the subject matter, the effects and consequence, or the reason and spirit of the law.3 He goes on to justify the remark by stating, that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use; that if words happen to be dubious, their meaning may be established by the context, or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject matter, with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined, because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted; and that the reason and spirit of the law, or the causes, which led to its enactment, are often the best exponents of the words, and limit their application.4

§ 401. Where the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation. It is only, when there is some ambiguity or doubt arising from other sources, that interpretation has its proper office. There may be obscurity, as to the meaning, from the doubtful character of the words used, from other clauses in the same instrument, or from an incongruity or repugnancy between the words, and the apparent intention derived from the whole structure of the instrument, or its avowed object. In all such cases interpretation becomes indispensable.

§ 402. Rutherforth5 has divided interpretation into three kinds, literal, rational, and mixed. The first is, where we collect the intention of the party from his words only, as they lie before us. The second is, where his words do not express that intention perfectly, but exceed it, or fall short of it, and we are to collect it from probable or rational conjectures only. The third is, where the words, though they do express the intention, when they are rightly understood, are themselves of doubtful meaning, and we are bound to have recourse to the like conjectures to find out in what sense they are used. In literal interpretation the rule observed is, to follow that sense in respect both of the words, and of the construction of them, which is agreeable to common use, without attending to etymological fancies or grammatical refinements. In mixed interpretation, which supposes the words to admit of two or more senses, each of which is agreeable to common usage, we are obliged to collect the sense, partly from the words, and partly from conjecture of the intention. The rules then adopted are, to construe the words according to the subject matter, in such a sense as to produce a reasonable effect, and with reference to the circumstances of the particular transaction. Light may also be obtained in such cases from contemporary facts, or expositions, from antecedent mischiefs, from known habits, manners, and institutions, and from other sources almost innumerable, which may justly affect the judgment in drawing a fit conclusion in the particular case.

§ 403. Interpretation also may be strict or large; though we do not always mean the same thing, when we speak of a strict or large interpretation. When common usage has given two senses to the same word, one of which is more confined, or includes fewer particulars than the other, the former is called its strict sense, and the latter, which is more comprehensive or includes more particulars, is called its large sense. If we find such a word in a law, and we take it in its more confined sense, we are said to interpret it strictly. If we take it in its more comprehensive sense, we are said to interpret it largely. But whether we do the one or the other, we still keep to the letter of the law. But strict and large interpretations are frequently opposed to each other in a different sense. The words of a law may sometimes express the meaning of the legislator imperfectly. They may, in their common acceptation, include either more or less than his intention. And as, on the one hand, we call it a strict interpretation, where we contend, that the letter is to be adhered to precisely; so, on the other hand, we call it a large interpretation, where we contend, that the words ought to be taken in such a sense, as common usage will not fully justify; or that the meaning of the legislator is something different from what his words in any usage would import. In this sense a large interpretation is synonymous with what has before been called a rational interpretation. And a strict interpretation, in this sense, includes both literal and mixed interpretation; and may, as contra-distinguished from the former, be called a close, in opposition to a free or liberal interpretation.6

§ 404. These elementary explanations furnish little room for controversy; but they may nevertheless aid us in making a closer practical application, when we arrive at more definite rules.

§ 405. II. In construing the constitution of the United States, we are, in the first instance, to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted, which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument. Where the words are unambiguous, but the provision may cover more or less ground according to the intention, which is yet subject to conjecture; or where it may include in its general terms more or less, than might seem dictated by the general design, as that may be gathered from other parts of the instrument, there is much more room for controversy; and the argument from inconvenience will probably have different influences upon different minds. Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only upon the most persuasive reasons. In examining the constitution, the antecedent situation of the country, and its institutions, the existence and operations of the state governments, the powers and operations of the confederation, in short all the circumstances, which had a tendency to produce, or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history, and contemporary interpretation, to aid us in just conclusions.7

§ 406. It is obvious; however, that contemporary interpretation must be resorted to with much qualification and reserve. In the first place, the private interpretation of any particular man, or body of men, must manifestly be open to much observation. The constitution was adopted by the people of the United States; and it was submitted to the whole upon a just survey of its provisions, as they stood in the text itself. In different states and in different conventions, different and very opposite objections are known to have prevailed; and might well be presumed to prevail. Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favor. And there can be no certainty, either that the different state conventions in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a single state convention, the same reasoning prevailed with a majority, much less with the whole of the supporters of it. In the interpretation of a state statute, no man is insensible of the extreme danger of resorting to the opinions of those, who framed it, or those who passed it. Its terms may have differently impressed different minds. Some may have implied limitations and objects, which others would have rejected. Some may have taken a cursory view of its enactments, and others have studied them with profound attention. Some may have been governed by a temporary interest or excitement, and have acted upon that exposition, which most favored their present views. Others may have seen lurking beneath its text, what commended it to their judgment against even present interests. Some may have interpreted its language strictly and closely; others from a different habit of thinking may have given it a large and liberal meaning. It is not to be presumed, that, even in the convention, which framed the constitution, from the causes above mentioned, and other causes, the clauses were always understood in the same sense, or had precisely the same extent of operation. Every member necessarily judged for himself; and the judgment of no one could, or ought to be, conclusive upon that of others. The known diversity of construction of different parts of it, as well of the mass of its powers, in the different state conventions; the total silence upon many objections, which have since been started; and the strong reliance upon others, which have since been universally abandoned, add weight to these suggestions. Nothing but the text itself was adopted by the people. And it would certainly be a most extravagant doctrine to give to any commentary then made, and, a fortiori, to any commentary since made under a very different posture of feeling and opinion, an authority, which should operate an absolute limit upon the text, or should supersede its natural and just interpretation.

§ 407. Contemporary construction is properly resorted to, to illustrate, and confirm the text, to explain a doubtful phrase, or to expound an obscure clause; and in proportion to the uniformity and universality of that construction, and the known ability and talents of those, by whom it was given, is the credit, to which it is entitled. It can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries.8 We shall have abundant reason hereafter to observe, when we enter upon the analysis of the particular clauses of the constitution, how many loose interpretations, and plausible conjectures were hazarded at an early period, which have since silently died away, and are now retained in no living memory, as a topic either of praise or blame, of alarm or of congratulation.

§ 408. And, after all, the most unexceptionable source of collateral interpretation is from the practical exposition of the government itself in its various departments upon particular questions discussed, and settled upon their own single merits. These approach the nearest in their own nature to judicial expositions; and have the same general recommendation, that belongs to the latter. They are decided upon solemn argument, pro re nata, upon a doubt raised, upon a lis mota, upon a deep sense of their importance and difficulty, in the face of the nation, with a view to present action, in the midst of jealous interests, and by men capable of urging, or repelling the grounds of argument, from their exquisite genius, their comprehensive learning, or their deep meditation upon the absorbing topic. How light, compared with these means of instruction, are the private lucubrations of the closet, or the retired speculations of ingenious minds, intent on theory, or general views, and unused to encounter a practical difficulty at every step!

§ 409. But to return to the rules of interpretation arising ex directo from the text of the constitution. And first the rules to be drawn from the nature of the instrument. (1.) It is to be construed, as a frame, or fundamental law of government, established by the PEOPLE of the United States, according to their own free pleasure and sovereign will. In this respect it is in no wise distinguishable from the constitutions of the state governments. Each of them is established by the people for their own purposes, and each is founded on their supreme authority. The powers, which are conferred, the restrictions, which are imposed, the authorities, which are exercised, the organization and distribution thereof, which are provided, are in each case for the same object, the common benefit of the governed, and not for the profit or dignity of the rulers.

§ 410. And yet it has been a very common mode of interpretation to insist upon a diversity of rules in construing the state constitutions, and that of the general government. Thus, in the Commentaries of Mr. Tucker upon Blackstone, we find it laid down, as if it were an incontrovertible doctrine in regard to the constitution of the United States, that “as federal, it is to be construed strictly, in all cases, where the antecedent rights of a state may be drawn in question. As a social compact, it ought likewise “to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the object of dispute; because every person, whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society, to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government.”9

§ 411. We here see, that the whole reasoning is founded, not on the notion, that the rights of the people are concerned, but the rights of the states. And by strict construction is obviously meant the most limited sense belonging to the words. And the learned author relies, for the support of his reasoning, upon some rules laid down by Vattel in relation to the interpretation of treaties in relation to odious things. It would seem, then, that the constitution of the United States is to be deemed an odious instrument. And why, it may be asked? Was it not framed for the good of the people, and by the people? One of the sections of Vattel, which is relied on, states this proposition,10 “That whatever tends to change the present state of things, is also to be ranked in the class of odious things.” Is it not most manifest, that this proposition is, or at least may be, in many cases, fundamentally wrong? If a people free themselves from a despotism, is it to be said, that the change of government is odious, and ought to be construed strictly? What, upon such a principle, is to become of the American Revolution; and of our state governments, and state constitutions? Suppose a well-ordered government arises out of a state of disorder and anarchy, is such a government to be considered odious? Another section11 adds, “Since odious things are those, whose restriction tends more certainly to equity than their extension, and since we ought to pursue that line, which is most conformable to equity, when the will of the legislature or of the contracting parties is not exactly known, we should, where there is a question of odious things, interpret the terms in the most limited sense. We may even, to a certain degree, adopt a figurative meaning in order to avert the oppressive consequences of the proper and literal sense, or anything of an odious nature, which it would involve.” Does not this section contain most lax and unsatisfactory ingredients for interpretation? Who is to decide, whether it is most conformable to equity to extend, or to restrict these? Who is to decide, whether the provision is odious? According to this rule, the most opposite interpretations of the same words would be equally correct, according as the interpretator should deem it odious or salutary. Nay, the words are to be deserted, and a figurative sense adopted, whenever he deems it advisable, looking to the odious nature or consequence of the common sense. He, who believes the general government founded in wisdom, and sound policy, and the public safety, may extend the words. He, who deems it odious, or the state governments the truest protection of all our rights, must limit the words to the narrowest meaning.

§ 412. The twelfth amendment to the constitution is also relied on by the same author, which declares, “that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” He evidently supposes, that this means “in all cases not expressly submitted to the new government “; yet the word “expressly” is no where found in the amendment. But we are not considering, whether any powers can be implied; the only point now before us is, how the express powers are to be construed. Are they to be construed strictly, that is, in their most limited sense? Or are they to receive a fair and reasonable construction, according to the plain meaning of the terms and the objects, for which they are used?

§ 413. When it is said, that the constitution of the United States should be construed strictly, viewed as a social compact, whenever it touches the rights of property, or of personal security, or liberty, the rule is equally applicable to the state constitutions in the like eases. The principle, upon which this interpretation rests, if it has any foundation, must be, that the people ought not to be presumed to yield up their rights of property or liberty, beyond what is the clear sense of the language and the objects of the constitution. All governments are founded on a surrender of some natural rights, and impose some restrictions. We may not be at liberty to extend the grants of power beyond the fair meaning of the words in any such case; but that is not the question here under discussion. It is, how we are to construe the words as used, whether in the most confined, or in the more liberal sense properly belonging to them. Now, in construing a grant, or surrender of powers by the people to a monarch, for his own benefit or use, it is not only natural, but just, to presume, as in all other cases of grants, that the parties had not in view any large sense of the terms, because the objects were a derogation permanently from their rights and interests. But in construing a constitution of government, framed by the people for their own benefit and protection, for the preservation of their rights, and property, and liberty; where the delegated powers are not, and cannot be used for the benefit of their rulers, who are but their temporary servants and agents; but are intended solely for the benefit of the people, no such presumption of an intention to use the words in the most restricted sense necessariIy arises. The strict, or the more extended sense, both being within the letter, may be fairly held to be within their intention, as either shall best promote the very objects of the people in the grant; as either shall best promote or secure their rights, property, or liberty. The words are not, indeed, to be stretched beyond their fair sense; but within that range, the rule of interpretation must be taken, which best follows out the apparent intention.12 This is the mode (it is believed) universally adopted in construing the state constitutions. It has its origin in common sense. And it never can be a matter of just jealousy; because the rulers can have no permanent interest in a free government, distinct from that of the people, of whom they are a part, and to whom they are responsible. Why the same reasoning should not apply to the government of the United States, it is not very easy to conjecture.

§ 414. But it is said, that the state governments being already in existence, and the people subjected to them, their obedience to the new government may endanger their obedience to the states, or involve them in a conflict of authority, and thus produce inconvenience. In the first place, it is not true, in a just sense, (if we are right in our view of the constitution of the United States,) that such a conflict can ultimately exist. For if the powers of the general government are of paramount and supreme obligation, if they constitute the supreme law of the land, no conflict, as to obedience, can be found. Whenever the question arises, as to whom obedience is due, it is to be judicially settled; and being settled, it regulates, at once, the rights and duties of all the citizens.

§ 415. In the next place, the powers given by the people to the general government are not necessarily carved out of the powers already confided by them to the state governments. They may be such, as they originally reserved to themselves. And, if they are not, the authority of the people, in their sovereign capacity, to withdraw power from their state functionaries, and to confide it to the functionaries of the general government, cannot be doubted or denied.13 If they withdraw the power from the state functionaries, it must be presumed to be, because they deem it more useful for themselves, more for the common benefit, and common protection, than to leave it, where it has been hitherto deposited. Why should a power in the hands of one functionary be differently construed in the hands of another functionary, if, in each case, the same object is in view, the safety of the people. The state governments have no right to assume, that the power is more safe or more useful with them, than with the general government; that they have a higher capacity and a more honest desire to preserve the rights and liberties of the people, than the general government; that there is no danger in trusting them; but that all the peril and all the oppression impend on the other side. The people have not so said, or thought; and they have the exclusive right to judge for themselves on the subject. They avow, that the constitution of the United States was adopted by them, “in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity.” It would be a mockery to ask, if these are odious objects. If these require every grant of power, withdrawn from the state governments, to be deemed strictissimi juris, and construed in the most limited sense, even if it should defeat these objects. What peculiar sanctity have the state governments in the eyes of the people beyond these objects? Are they not framed for the same general ends? Was not the very inability of the state governments suitably to provide for our national wants, and national independence, and national protection, the very groundwork of the whole system?

§ 416. If this be the true view of the subject, the constitution of the United States is to receive as favorable a construction, as those of the states. Neither is to be construed alone; but each with a reference to the other. Each belongs to the same system of government; each is limited in its powers; and within the scope of its powers each is supreme. Each, by the theory of our government, is essential to the existence and due preservation of the powers and obligations of the other. The destruction of either would be equally calamitous, since it would involve the ruin of that beautiful fabric of balanced government, which has been reared with so much care and wisdom, and in which the people have reposed their confidence, as the truest safeguard of their civil, religious, and political liberties. The exact limits of the powers confided by the people to each, may not always be capable, from the inherent difficulty of the subject, of being defined, or ascertained in all cases with perfect certainty.14 But the lines are generally marked out with sufficient broadness and clearness; and in the progress of the development of the peculiar functions of each, the part of true wisdom would seem to be, to leave in every practicable direction a wide, if not an unmeasured, distance between the actual exercise of the sovereignty of each. In every complicated machine slight causes may disturb the operations; and it is often more easy to detect the defects, than to apply a safe and adequate remedy.

§ 417. The language of the Supreme Court, in the case of Martin v. Hunter,15 seems peculiarly appropriate to this part of our subject. “The constitution of the United States,” say the court, “was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States.16 There can be no doubt, that it was competent to the people to invest the general government with all the powers, which they might deem proper and necessary; to extend or restrain those powers according to their own good pleasure; and to give them a paramount and supreme authority. As little doubt can there be, that the people had a right to prohibit to the states the exercise of any powers, which were in their judgment incompatible with the objects of the general compact; to make the powers of the state governments, in given cases, subordinate to those of the nation; or to reserve to themselves those sovereign authorities, which they might not choose to delegate to either. The constitution was hot, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in state institutions. For the powers of the state governments depend upon their own constitutions; and the people of every state had a right to modify or restrain them according to their own views of policy or principle. On the other hand, it is perfectly clear, that the sovereign powers, vested in the state governments by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States.” These deductions do not rest upon general reason, plain and obvious as they seem to be. They have been positively recognised by one of the articles in amendment of the constitution, which declares, that “the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”17

” The government, then, of the United States, can claim no powers, which are not granted to it by the constitution; and the powers actually granted must be such, as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction according to the import of its terms. And where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grows out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.”

§ 418. A still more striking response to the argument for a strict construction of the constitution will be found in the language of the court, in the case of Gibbons v. Ogden, (9 Wheat. 1, &c.) Mr. Chief Justice Marshall, in delivering the opinion of the court, says, “This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution, which gives countenance to this rule? In the last of the enumerated powers, that, which grants expressly the means for carrying all others into execution, congress is authorized `to make all laws, which shall be necessary and proper’ for the purpose. But this limitation on the means, which may be used, is not extended to the powers, which are conferred; nor is there one sentence in the constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the terms, but should not controvert the principle. If they contend for that narrow construction, which, in support of some theory not to be found in the constitution, would deny to the government those powers, which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the objects, for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule, by which the constitution is to be expounded. As men, whose intentions require no concealment, generally employ the words, which most directly and aptly express the ideas they intend to convey; the enlightened patriots, who framed our constitution, and the people, who adopted it, must be understood to have employed words in their natural sense, and to have intended, what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects, for which it was given, especially, when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power, which might be beneficial to the grantor, if retained by himself, or which can ensure solely to the benefit of the grantee; but is an investment of power for the general advantage, in the hands of agents selected for that purpose; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument, which confers them, taken in connection with the purposes, for which they were conferred.”18

§ 419. IV. From the foregoing considerations we deduce the conclusion, that as a frame or fundamental law of government, (2.) The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution; that, which will give it efficacy and force, as a government, rather than that, which will impair its operations, and reduce it to a state of imbecility. Of course we do not mean, that the words for this purpose are to be strained beyond their common and natural sense; but keeping within that limit, the exposition is to have a fair and just latitude, so as on the one hand to avoid obvious mischief, and on the other hand to promote the public good.19

§ 420. This consideration is of great importance in construing a frame of government; and a fortiori a frame of government, the free and voluntary institution of the people for their common benefit, security, and happiness. It is wholly unlike the case of a municipal charter, or a private grant, in respect both to its means and its ends. When a person makes a private grant of a particular thing, or of a license to do a thing, or of an easement for the exclusive benefit of the grantee, we naturally confine the terms, however general, to the objects clearly in the view of the parties. But even in such cases, doubtful words, within the scope of those objects, are construed most favorably for the grantee; because, though in derogation of the rights of the grantor, they are promotive of the general rights secured to the grantee. But, where the grant enures, solely and exclusively, for the benefit of the grantor himself, no one would deny the propriety of giving to the words of the grant a benign and liberal interpretation. In cases, however, of private grants, the objects generally are few; they are certain; they are limited; they neither require, nor look to a variety of means or changes, which are to control, or modify either the end, or the means.

§ 421. In regard also to municipal charters, or public grants, similar considerations usually apply. They are generally deemed restrictive of the royal or public prerogative, or of the common rights secured by the actual organization of the government to other individuals, or communities. They are supposed to be procured, not so much for public good, as for private or local convenience. They are supposed to arise from personal solicitation, upon general suggestions, and not ex certâ causâ, or ex mero motu of the king, or government itself. Hence, such charters are often required by the municipal jurisprudence to be construed strictly, because they yield something, which is common, for the benefit of a few. And yet, where it is apparent, that they proceed upon greater or broader motives, a liberal exposition is not only indulged, but is encouraged, if it manifestly promotes the public good.20 So that we see, that even in these cases, common sense often dictates a departure from a narrow and strict construction of the terms, though the ordinary rules of mere municipal law may not have favored it.

§ 422. But a constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature, for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty, necessarily requires, that every interpretation of its powers should have a constant reference to these objects. No interpretation of the words, in which those powers are granted, can be a sound one, which narrows down their ordinary import, so as to defeat those objects. That would be to destroy the spirit, and to cramp the letter. It has been justly observed, that “the constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specification of its powers, or to declare the means, by which those powers should be carried into execution. It was foreseen, that it would be a perilous, and difficult, if not an impracticable task. The instrument was not intended to provide merely for the exigencies of a few years; but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen, what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present might seem salutary, might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.”21 Language to the same effect will be found in other judgments of the same tribunal.22

§ 423. If, then, we are to give a reasonable construction to this instrument, as a constitution of government established for the common good, we must throw aside all notions of subjecting it to a strict interpretation, as if it were subversive of the great interests of society, or derogated from the inherent sovereignty of the people. And this will naturally lead us to some other rules properly belonging to the subject.

§ 424. V. Where the power is granted in general terms, the power is to be construed, as coextensive with the terms, unless some clear restriction upon it is deducible from the context. We do not mean to assert, that it is necessary, that such restriction should be expressly found in the context. It will be sufficient, if it arise by necessary implication. But it is not sufficient to show, that there was, or might have been, a sound or probable motive to restrict it. A restriction founded on conjecture is wholly inadmissible. The reason is obvious: the text was adopted by the people in its obvious, and general sense. We have no means of knowing, that any particular gloss, short of this sense, was either contemplated, or approved by the people; and such a gloss might, though satisfactory in one state, have been the very ground of objection in another. It might have formed a motive to reject it in one, and to adopt it in another. The sense of a part of the people has no title to be deemed the sense of the whole. Motives of state policy, or state interest, may properly have influence in the question of ratifying it; but the constitution itself must be expounded, as it stands; and not as that policy, or that interest may seem now to dictate. We are to construe, and not to frame the instrument.23

§ 425. VI. A power, given in general terms, is not to be restricted to particular cases, merely because it may be susceptible of abuse, and, if abused, may lead to mischievous consequences. This argument is often used in public debate; and in its common aspect addresses itself so much to popular fears and prejudices, that it insensibly acquires a weight in the public mind, to which it is no wise entitled. The argument ab inconvenienti is sufficiently open to question, from the laxity of application, as well as of opinion, to which it leads. But the argument from a possible abuse of a power against its existence or use, is, in its nature, not only perilous, but, in respect to governments, would shake their very foundation. Every form of government unavoidably includes a grant of some discretionary powers. It would be wholly imbecile without them. It is impossible to foresee all the exigencies, which may arise in the progress of events, connected with the rights, duties, and operations of a government. If they could be foreseen, it would be impossible ab ante to provide for them. The means must be subject to perpetual modification, and change; they must be adapted to the existing manners, habits, and institutions of society, which are never stationary; to the pressure of dangers, or necessities; to the ends in view; to general and permanent operations, as well as to fugitive and extraordinary emergencies. In short, if the whole society is not to be revolutionized at every critical period, and remodeled in every generation, there must be left to those, who administer the government, a very large mass of discretionary powers, capable of greater or less actual expansion according to circumstances, and sufficiently flexible not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No constitution can provide perfect guards against it. Confidence must be reposed somewhere; and in free governments, the ordinary securities against abuse are found in the responsibility of rulers to the people, and in the just exercise of their elective franchise; and ultimately in the sovereign power of change belonging to them, in cases requiring extraordinary remedies. Few cases are to be supposed, in which a power, however general, will be exerted for the permanent oppression of the people.24 And yet, cases may easily be put, in which a limitation upon such a power might be found in practice to work mischief; to incite foreign aggression; or encourage domestic disorder. The power of taxation, for instance, may be carried to a ruinous excess; and yet, a limitation upon that power might, in a given case, involve the destruction of the independence of the country.

§ 426. VII. On the other hand, a rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous.25 If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment. If they do not choose to apply the remedy, it may fairly be presumed, that the mischief is less than what would arise from a further extension of the power; or that it is the least of two evils. Nor should it ever be lost sight of, that the government of the United States is one of limited and enumerated powers; and that a departure from the true import and sense of its powers is, pro tanto, the establishment of a new constitution. It is doing for the people, what they have not chosen to do for themselves It is usurping the functions of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta est, to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice, than mere policy and convenience Men on such subjects complexionally differ from each other. The same men differ from themselves at different times. Temporary delusions, prejudices, excitements, and objects have irresistible influence in mere questions of policy. And the policy of one age may ill suit the wishes, or the policy of another. The constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, today, and forever.

§ 427. It has been observed with great correctness, that although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter; yet the spirit is to be collected chiefly from the letter. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case, for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one, where the absurdity and injustice of applying the provision to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.26 This language has reference to a case where the words of a constitutional provision are sought to be restricted. But it appears with equal force where they are sought to be enlarged.

§ 428. VIII. No construction of a given power is to be allowed, which plainly defeats, or impairs its avowed objects. If, therefore, the words are fairly susceptible of two interpretations, according to their common sense and use, the one of which would defeat one, or all of the objects, for which it was obviously given, and the other of which would preserve and promote all, the former interpretation ought to be rejected, and the latter be held the true interpretation. This rule results from the dictates of mere common sense; for every instrument ought to be so construed, ut magis valeat, quam pereat.27 For instance, the constitution confers on congress the power to declare war. Now the word declare has several senses. It may mean to proclaim, or publish. But no person would imagine, that this was the whole sense, in which the word is used in this connection. It should be interpreted in the sense, in which the phrase is used among nations, when applied to such a subject matter. A power to declare war is a power to make, and carry on war. It is not a mere power to make known an existing thing, but to give life and effect to the thing itself.28 The true doctrine has been expressed by the Supreme Court: “If from the imperfection of human language there should be any serious doubts respecting the extent of any given power, the objects, for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction.”29

§ 429. IX. Where a power is remedial in its nature, there is much reason to contend, that it ought to be construed liberally. That was the doctrine of Mr. Chief Justice Jay, in Chisholm v. Georgia;30 and it is generally adopted in the interpretation of laws.31 But this liberality of exposition is clearly inadmissible, if it extends beyond the just and ordinary sense of the terms.

§ 430. X. In the interpretation of a power, all the ordinary and appropriate means to execute it are to be deemed a part of the power itself. This results from the very nature and design of a constitution. In giving the power, it does not intend to limit it to any one mode of exercising it, exclusive of all others. It must be obvious, (as has been already suggested,) that the means of carrying into effect the objects of a power may, nay, must be varied, in order to adapt themselves to the exigencies of the nation at different times.32 A mode efficacious and useful in one age, or under one posture of circumstances, may be wholly vain, or even mischievous at another time. Government presupposes the existence of a perpetual mutability in its own operations on those, who are its subjects; and a perpetual flexibility in adapting itself to their wants, their interests, their habits, their occupations, and their infirmities.33

§ 431. Besides; if the power only is given, without pointing out the means, how are we to ascertain, that any one means, rather than another, is exclusively within its scope? The same course of reasoning, which would deny a choice of means to execute the power, would reduce the power itself to a nullity. For, as it never could be demonstrated, that any one mode in particular was intended, and to be exclusively employed; and, as it might be demonstrated, that other means might be employed, the question, whether the power were rightfully put into exercise, would forever be subject to doubt and controversy. If one means is adopted to give it effect, and is within its scope, because it is appropriate, how are we to escape from the argument, that another, falling within the same predicament, is equally within its scope? If each is equally appropriate, how is the choice to be made between them? If one is selected, how does that exclude all others? If one is more appropriate at one time, and another at another time, where is the restriction to be found, which allows the one, and denies the other? A power granted in a frame of government is not contemplated to be exhausted in a single exertion of it, or uno flatu. It is intended for free and permanent exercise; and if the discretion of the functionaries, who are to exercise it, is not limited, that discretion, especially, as those functionaries must necessarily change, must be coextensive with the power itself. Take, for instance, the power to make war. In one age, this would authorize the purchase and employment of the weapons then ordinarily used for this purpose. But suppose these weapons are wholly laid aside, and others substituted, more efficient and powerful; is the government prohibited from employing the new modes of offence and defence? Surely not. The invention of gunpowder superseded the old modes of warfare, and may perhaps, by future inventions, be superseded in its turn. No one can seriously doubt, that the new modes would be within the scope of the power to make war, if they were appropriate to the end. It would, indeed, be a most extraordinary mode of interpretation of the constitution, to give such a restrictive meaning to its powers, as should obstruct their fair operation. A power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to be their intention, to clog and embarrass its execution, by withholding the most appropriate means. There can be no reasonable ground for preferring that construction, which would render the operations of the government difficult, hazardous, and expensive; or for imputing to the framers of the constitution a design to impede the exercise of its powers, by withholding a choice of means.

§ 432. In the practical application of government, then, the public functionaries must be left at liberty to exercise the powers, with which the people by the constitution and laws have entrusted them. They must have a wide discretion, as to the choice of means; and the only limitation upon that discretion would seem to be, that the means are appropriate to the end. And this must naturally admit of considerable latitude; for the relation between the action and the end has has been justly remarked) is not always so direct and palpable, as to strike the eye of every observer.34 If the end be legitimate and within the scope of the constitution, all the means, which are appropriate, and which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect.35 When, then, it is asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union, the true answer is, that the national government, like every other, must judge in the first instance of the proper exercise of its powers; and its constituents in the last. If the means are within the reach of the power, no other department can inquire into the policy or convenience of the use of them. If there be an excess by overleaping the just boundary of the power, the judiciary may generally afford the proper relief; and in the last resort the people, by adopting such measures to redress it, as the exigency may suggest, and prudence may dictate.36

§ 433. XI. And this leads us to remark, in the next place, that in the interpretation of the constitution there is no solid objection to implied powers.37 Had the faculties of man been competent to the framing of a system of government, which would leave nothing to implication, it cannot be doubted, that the effort would have been made by the framers of our constitution. The fact, however, is otherwise. There is not in the whole of that admirable instrument a grant of powers, which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate.38 There is no phrase in it, which, like the articles of confederation,39 excludes incidental and implied powers, and which requires, that everything granted shall be expressly and minutely described. Even the tenth amendment, which was framed for the purpose of quieting the excessive jealousies, which had been excited, omits the word “expressly,” (which was contained in the articles of confederation,) and declares only, that “the powers, not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people;” thus leaving the question, whether the particular power, which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument. The men, who drew and adopted this amendment, had experienced the embarrassments, resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions, of which its great powers will admit, and of all the means, by which these may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredient which compose those objects, be deduced from the nature of those objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why, else, were some of the limitations, found in the ninth section of the first article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term, which might prevent its receiving a fair and just interpretation. In considering this point, we should never forget, that it is a constitution we are expounding.40

§ 434. The reasoning of the Federalist is to the same effect. Every power, which is the means of carrying into effect a given power, is implied from the very nature of the original grant. It is a necessary and unavoidable implication from the act of constituting a government, and vesting it with certain specified powers. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative power, but laws?41 No axiom, indeed, is more clearly established in law or in reason, than that, where the end is required, the means are authorized. Whenever a general power to do a thing is given, every particular power necessary for doing it is included. In every new application of a general power, the particular power, which are the means of attaining the object of the general power, must always necessarily vary with that object; and be often properly varied, whilst the object remains the same.42 Even under the confederation, where the delegation of authority was confined to express powers, the Federalist remarks, that it would be easy to show, that no important power delegated by the articles of confederation had been, or could be, executed by congress, without recurring more or less to the doctrine of construction or implication!43

§ 435. XII. Another point, in regard to the interpretation of the constitution, requires us to advert to the rules applicable to cases of concurrent and exclusive powers. In what cases are the powers given to the general government exclusive, and in what cases may the states maintain a concurrent exercise? Upon this subject we have an elaborate exposition by the authors of the Federalist;44 and as it involves some of the most delicate questions growing out of the constitution, and those, in which a conflict with the states is most likely to arise, we cannot do better than to quote the reasoning.

§ 436. “An entire consolidation of the states into one complete national sovereignty, would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty, which they before had, and which were not, by that act, exclusively delegated to the United States. This exclusive delegation, or rather this alienation of state sovereignty, would only exist in three cases: where the constitution in express terms granted an exclusive authority to the Union; where it granted, in one instance, an authority to the Union, and in another, prohibited the states from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. I use these terms to distinguish this last case from another, which might appear to resemble it; but which would, in fact, be essentially different: I mean, where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive jurisdiction in the federal government, may be exemplified by the following instances. The last clause but one in the eighth section of the first article, provides expressly, that congress shall exercise ‘exclusive legislation ‘ over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers congress ‘to lay and collect taxes, duties, imposts, and excises; ‘ and the second clause of the tenth section of the same article declares, that ‘no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws; Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned. But this power is abridged by another clause, which declares, that no tax or duty shall be laid on articles exported from any state; in consequence of which qualification, it now only extends to the duties on imports. This answers to the second case. The third will be found in that clause, which declares, that congress shall have power ‘to establish an uniform rule of naturalization throughout the United States.‘ This must necessarily be exclusive; because, if each state had power to prescribe a distinct rule, there could be no uniform rule.” The correctness of these rules of interpretation has never been controverted; and they have been often recognised by the Supreme Court.45

§ 437. The two first rules are so completely self-evident, that every attempt to illustrate them would be vain, if it had not a tendency to perplex and confuse. The last rule, viz. that which declares, that the power is exclusive in the national government, where an authority is granted to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant, is that alone, which may be thought to require comment. This rule seems, in its own nature, as little susceptible of doubt, as the others in reference to the constitution. For, since the constitution has declared, that the constitution and laws, and treaties in pursuance of it shall be the supreme law of the land; it would be absurd to say, that a state law, repugnant to it, might have concurrent operation and validity; and especially, as it is expressly added, anything in the constitution or laws of any state to the contrary notwithstanding. The repugnancy, then, being made out, it follows, that the state law is just as much void, as though it had been expressly declared to be void; or the power in congress had been expressly declared to be exclusive. Every power given to congress is by the constitution necessarily supreme; and if, from its nature, or from the words of the grant, it is apparently intended to be exclusive, it is as much so, as if the states were expressly forbidden to exercise it.46

§ 438. The principal difficulty lies, not so much in the rule, as in its application to particular cases. Here, the field for discussion is wide, and the argument upon construction is susceptible of great modifications, and of very various force. But unless, from the nature of the power, or from the obvious results of its operations, a repugnancy must exist, so as to lead to a necessary conclusion, that the power was intended to be exclusive, the true rule of interpretation is, that the power is merely concurrent. Thus, for instance, an affirmative power in congress to lay taxes, is not necessarily incompatible with a like power in the States. Both may exist without interference; and if any interference should arise in a particular case, the question of supremacy would turn, not upon the nature of the power, but upon supremacy of right in the exercise of the power in that case.47 In our complex system, presenting the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only enumerated powers, and of numerous state governments, which retain and exercise many powers not delegated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective governments to execute their acknowledged powers would be often of the same description, and might sometimes interfere. This, however, does not prove, that the one is exercising, or has a right to exercise, the powers of the other.48

§ 439. And this leads us to remark, that in the exercise of concurrent powers, if there be a conflict between the laws of the Union and the laws of the state, the former being supreme, the latter must of course yield. The possibility, nay the probability, of such a conflict was foreseen by the framers of the constitution, and was accordingly expressly provided for. If a state passes a law inconsistent with the constitution of the United States it is a mere nullity. If it passes a law clearly within its own constitutional powers, still if it conflicts with the exercise of a power given to congress, to the extent of the interference its operation is suspended; for, in a conflict of laws, that which is supreme must govern. Therefore, it has often been adjudged, that if a state law is in conflict with a treaty, or an act of congress, it becomes ipso facto inoperative to the extent of the conflict.49

§ 440. From this great rule, that the constitution and laws, made in pursuance thereof, are supreme; and that they control the constitutions and laws of the states, and cannot be controlled by them, from this, which may be deemed an axiom, other auxiliary corollaries may be deduced. In the first place, that, if a power is given to create a thing, it implies a power to preserve it. Secondly, that a power to destroy, if wielded by a different hand, is hostile to and incompatible with this power to create and preserve. Thirdly, that where this repugnancy exists, the authority, which is supreme, must control, and not yield to that, over which it is supreme.50 Consequently, the inferior power becomes a nullity.51

§ 441. But a question of a still more delicate nature may arise; and that is, how far in the exercise of a concurrent power, the actual legislation of congress supersedes the state legislation, or suspends its operation over the subject matter. Are the state laws inoperative only to the extent of the actual conflict; or does the legislation of congress suspend the legislative power of the states over the subject matter? To such an inquiry, probably, no universal answer could be given. It may depend upon the nature of the power, the effect of the actual exercise, and the extent of the subject matter.

§ 442. This may, perhaps, be best illustrated by putting a case, which has been reasoned out by a very learned judge, in his own words:52 “Congress has power,” says he, “to provide for organizing, arming, and disciplining the militia; and it is presumable, that the framers of the constitution contemplated a full exercise of all these powers. Nevertheless, if congress had declined to exercise them, it was competent to the state governments to provide for organizing, arming, and disciplining their respective militia in such manner, as they might think proper. But congress has provided for these subjects in the way, which that body must have supposed the best calculated to promote the general welfare, and to provide for the national defence. After this, can the state governments enter upon the same ground, provide for the same objects, as they may think proper, and punish, in their own way, violations of the laws they have so enacted? The affirmative of this question is asserted by counsel, etc. who contend, that unless such state laws are in direct contradiction to those of the United States, they are not repugnant to the constitution of the United States. – From this doctrine I must, for one, be permitted to dissent. The two laws may not be in such absolute opposition to each other, as to render the one incapable of execution without violating the injunctions of the other; and yet the will of the one legislature may be in direct collision with that of the other. This will is to be discovered, as well by what the legislature has not declared, as by what they have expressed. Congress, for example, have declared, that the punishment for disobedience of the act of congress shall be a certain fine. If that provided by the state legislature for the same offence be a similar fine with the addition of imprisonment or death, the latter law would not prevent the former from being carried into execution, and may be said, therefore, not to be repugnant to it. But surely the will of Congress is nevertheless thwarted and opposed.”53 He adds, “I consider it a novel and unconstitutional doctrine, that in cases, where the state governments have a concurrent power of legislation with the national government, they may legislate upon any subject, on which congress has acted, provided the two laws are not in terms, or in their operation contradictory and repugnant to each other.”54

§ 443. Another illustration may be drawn from the opinion of the court in another highly important case. One question was, whether the power of congress to establish uniform laws on the subject of bankruptcies was exclusive, or concurrent with the states. “It does not appear,” it was then said, “to be a violent construction of the constitution, and is certainly a convenient one, to consider the power of the states as existing over such cases, as the laws of the Union may not reach. Be this as it may, the power of congress may be exercised, or declined, as the wisdom of that body shall decide. If, in the opinion of congress, uniform laws concerning bankruptcies ought not to be established, it does not follow, that partial laws may not exist, or that state legislation on the subject must cease. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states. It is not the right to establish these uniform laws; but their actual establishment, which is inconsistent with the partial acts of the states. If the right of the states to pass a bankrupt law is not taken away by the mere grant of that power to congress, it cannot be extinguished. It can only be suspended by the enactment of a general bankrupt law. The repeal of that law cannot, it is true, confer the power on the states; but it removes a disability to its exercise, which was created by the act of congress.”55

It is not our intention to comment on these cases; but to offer them as examples of reasoning in favor and against the exclusive power, where a positive repugnancy cannot be predicated.

§ 444. It has been sometimes argued, that when a power is granted to congress to legislate in specific cases, for purposes growing out of the Union, the natural conclusion is, that the power is designed to be exclusive; that the power is to be exercised for the good of the whole by the will of the whole, and consistently with the interests of the whole; and that these objects can nowhere be so clearly seen, or so thoroughly weighed, as in congress, where the whole nation is represented. But the argument proves too much; and pursued to its full extent, it would establish, that all the powers granted to congress are exclusive, unless where concurrent authority is expressly reserved to the states.56 For instance, upon this reasoning the power of taxation in congress would annul the whole power of taxation of the states; and thus operate a virtual dissolution of their sovereignty. Such a pretension has been constantly disclaimed.

§ 445. On the other hand, it has been maintained with great pertinacity, that the states possess concurrent authority with congress in all cases, where the power is not expressly declared to be exclusive, or expressly prohibited to the states; and if, in the exercise of a concurrent power, a conflict arises, there is no reason, why each should not be deemed equally rightful.57 But it is plain, that this reasoning goes to the direct overthrow of the principle of supremacy; and, if admitted, it would enable the subordinate sovereignty to annul the powers of the superior. There is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to these very measures, is declared to be supreme over that, which exerts the control.58 For instance, the states have acknowledgedly a concurrent power of taxation. But it is wholly inadmissible to allow that power to be exerted over any instrument employed by the general government to execute its own powers; for such a power to tax involves a power to destroy; and this power to destroy may defeat, and render useless the power to create.59 Thus a state may not tax the mail, the mint, patent rights, custom-house papers, or judicial process of the courts of the United States.60 And yet there is no clause in the constitution, which prohibits the states from exercising the power; nor any exclusive grant to the United States. The apparent repugnancy creates, by implication, the prohibition. So congress, by the constitution, possess power to provide for governing such part of the militia, as may be employed in the service of the United States. Yet it is not said, that such power of government is exclusive. But it results from the nature of the power. No person would contend, that a state militia, while in the actual service and employment of the United States, might yet be, at the same time, governed and controlled by the laws of the state. The very nature of military operations would, in such case, require unity of command and direction. And the argument from inconvenience would be absolutely irresistible to establish an implied prohibition.61 On the other hand, congress have power to provide for organizing, arming, and disciplining the militia; but if congress should make no such provision, there seems no reason, why the states may not organize, arm, and discipline their own militia. No necessary incompatibility would exist in the nature of the power; though, when exercised by congress, the authority of the states must necessarily yield. And, here, the argument from inconvenience would be very persuasive the other way. For the power to organize, arm, and discipline the militia, in the absence of congressional legislation, would seem indispensable for the defence and security of the states.62 Again, congress have power to call forth the militia to execute the laws of the Union, to suppress insurrections, and repel invasions. But there does not seem any incompatibility in the states calling out their own militia as auxiliaries for the same purpose.63

§ 446. In considering, then, this subject, it would be impracticable to lay down any universal rule, as to what powers are, by implication, exclusive in the general government, or concurrent in the states; and in relation to the latter, what restrictions either on the power itself, or on the actual exercise of the power, arise by implication. In some cases, as we have seen, there may exist a concurrent power, and yet restrictions upon it must exist in regard to objects. In other cases, the actual operations of the power only are suspended or controlled, when there arises a conflict with the actual operations of the Union. Every question of this sort must be decided by itself upon its own circumstances and reasons. Because the power to regulate commerce, from its nature and objects, is exclusive, it does not follow, that the power to pass bankrupt laws also is exclusive.64

§ 447. We may, however, lay down some few rules, deducible from what has been already said, in respect to cases of implied prohibitions upon the existence or exercise of powers by the states, as guides to aid our inquiries. (1.) Wherever the power given to the general government requires, that, to be efficacious and adequate to its end, it should be exclusive, there arises a just implication for deeming it exclusive. Whether exercised, or not, in such a case makes no difference. (2.) Wherever the power in its own nature is not incompatible with a concurrent power in the states, either in its nature or exercise, there the power belongs to the states. (3.) But in such a case, the concurrency of the power may admit of restrictions or qualifications in its nature, or exercise. In its nature, when it is capable from its general character of being applied to objects or purposes, which would control, defeat, or destroy the powers of the general government. In its exercise, when there arises a conflict in the actual laws and regulations made in pursuance of the power by the general and state governments. In the former case there is a qualification engrafted upon the generality of the power, excluding its application to such objects and purposes. In the latter, there is (at least generally) a qualification, not upon the power itself, but only upon its exercise, to the extent of the actual conflict in the operations of each. (4.) In cases of implied limitations or prohibitions of power, it is not sufficient to show a possible, or potential inconvenience. There must be a plain incompatibility, a direct repugnancy, or an extreme practical inconvenience, leading irresistibly to the same conclusion. (5.) If such incompatibility, repugnancy, or extreme inconvenience would result, it is no answer, that in the actual exercise of the power, each party may, if it chooses, avoid a positive interference with the other. The objection lies to the power itself, and not to the exercise of it. If it exists, it may be applied to the extent of controlling, defeating, or destroying the other. It can never be presumed, that the framers of the constitution, declared to be supreme, could intend to put its powers at hazard upon the good wishes, or good intentions, or discretion of the states in the exercise of their acknowledged powers. (6.) Where no such repugnancy, incompatibility, or extreme inconvenience would result, then the power in the states is restrained, not in its nature, but in its operations, and then only to the extent of the actual interference. In fact, it is obvious, that the same means may often be applied to carry into operation different powers. And a state may use the same means to effectuate an acknowledged power in itself, which congress may apply for another purpose in the acknowledged exercise of a very different power. Congress may make that a regulation of commerce, which a state may employ as a guard for its internal policy, or to preserve the public health or peace, or to promote its own peculiar interests.65 These rules seem clearly deducible from the nature of the instrument; and they are confirmed by the positive injunctions of the tenth amendment of the constitution.

§ 448. XIII. Another rule of interpretation deserves consideration in regard to the constitution. There are certain maxims, which have found their way, not only into judicial discussions, but into the business of common life, as founded in common sense, and common convenience. Thus, it is often said, that in an instrument a specification of particulars is an exclusion of generals; or the expression of one thing is the exclusion of another. Lord Bacon’s remark, “that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated,” has been perpetually referred to, as a fine illustration. These maxims, rightly understood, and rightly applied, undoubtedly furnish safe guides to assist us in the task of exposition. But they are susceptible of being applied, and indeed are often ingeniously applied, to the subversion of the text, and the objects of the instrument. Thus, it has been suggested, that an affirmative provision in a particular case excludes the existence of the like provision in every other case; and a negative provision in a particular case admits the existence of the same thing in every other case.66 Both of these deductions are, or rather may be, unfounded in solid reasoning.67 Thus, it was objected to the constitution, that, having provided for the trial by jury in criminal cases, there was an implied exclusion of it in civil cases. As if there was not an essential difference between silence and abolition, between a positive adoption of it in one class of cases, and a discretionary right (it being clearly within the reach of the judicial powers confided to the Union) to adopt, or reject it in all or any other cases.68 One might with just as much propriety hold, that, because congress has power “to declare war,” but no power is expressly given to make peace, the latter is excluded; or that, because it is declared, that “no bill of attainder, or ex post facto law shall be passed” by congress, therefore congress possess in all other cases the right to pass any laws. The truth is, that in order to ascertain, how far an affirmative or negative provision excludes, or implies others, we must look to the nature of the provision, the subject matter, the objects, and the scope of the instrument. These, and these only, can properly determine the rule of construction. There can be no doubt, that an affirmative grant of powers in many cases will imply an exclusion of all others. As, for instance, the constitution declares, that the powers of congress shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretensions to a general legislative authority. Why? Because an affirmative grant of special powers would be absurd, as well as useless, if a general authority were intended.69 In relation, then, to such a subject as a constitution, the natural and obvious sense of its provisions, apart from any technical or artificial rules, is the true criterion of construction.70

§ 449. XIV. Another rule of interpretation of the constitution, suggested by the foregoing, is, that the natural import of a single clause is not to be narrowed, so as to exclude implied powers resulting from its character, simply because there is another clause, which enumerates certain powers, which might otherwise be deemed implied powers within its scope; for in such cases we are not, as a matter of course, to assume, that the affirmative specification excludes all other implications. This rule has been put in a clear and just light by one of our most distinguished statesmen; and his illustration will be more satisfactory, perhaps, than any other, which can be offered. “The constitution,” says he, “vests in congress, expressly, the power to lay and collect taxes, duties, imposts, and excises, and the power to regulate trade. That the former power, if not particularly expressed, would have been included in the latter, as one of the objects of a general power to regulate trade, is not necessarily impugned by its being so expressed. Examples of this sort cannot sometimes be easily avoided, and are to be seen elsewhere in the constitution. Thus, the power ‘to define and punish offences against the law of nations’ includes the power, afterwards particularly expressed, ‘to make rules concerning captures,’ etc. from offending neutrals. So, also, a power ‘to coin money’ would, doubtless, include that of ‘ regulating its value,’ had not the latter power been expressly inserted. The term taxes, if standing alone, would certainly have included ‘duties, imposts, and excises.’ In another clause it is said, ‘ no tax or duty shall be laid on exports.’ Here the two terms are used as synonymous. And in another clause, where it is said ‘no state shall lay any imposts or duties,’ etc. the terms imposts and duties are synonymous. Pleonasms, tautologies, and the promiscuous use of terms and phrases, differing in their shades of meaning, (always to be expounded with reference to the context, and under the control of the general character and scope of the instrument, in which they are found,) are to be ascribed, sometimes to the purposes of greater caution, sometimes to the imperfection of language, and sometimes to the imperfection of man himself. In this view of the subject it was quite natural, however certainly the power to regulate trade might include a power to impose duties on it, not to omit it in a clause enumerating the several modes of revenue authorized by the construction. In few cases could the [rule], ex majori cautela, occur with more claim to respect.”71

§ 450. We may close this view of some of the more important rules to be employed in the interpretation of the constitution, by adverting to a few belonging to mere verbal criticism, which are indeed but corollaries from what has been said, and have been already alluded to; but which, at the same time, it may be of some use again distinctly to enunciate.

§ 451. XV. In the first place, then, every word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.

§ 452. XVI. But, in the next place, words, from the necessary imperfection of all human language, acquire different shades of meaning, each of which is equally appropriate, and equally legitimate; each of which recedes in a wider or narrower degree from the others, according to circumstances; and each of which receives from its general use some indefiniteness and obscurity, as to its exact boundary and extent.72 We are, indeed, often driven to multiply commentaries from the vagueness of words in themselves; and perhaps still more often from the different manner, in which different minds are accustomed to employ them. They expand or contract, not only from the conventional modifications introduced by the changes of society; but also from the more loose or more exact uses, to which men of different talents, acquirements, and tastes, from choice or necessity apply them. No person can fail to remark the gradual deflections in the meaning of words from one age to another; and so constantly is this process going on, that the daily language of life in one generation sometimes requires the aid of a glossary in another. It has been justly remarked,73 that no language is so copious, as to supply words and phrases for every complex idea; or so correct, as not to include many, equivocally denoting different ideas. Hence it must happen, that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms, in which it is delivered. We must resort then to the context, and shape the particular meaning, so as to make it fit that of the connecting words, and agree with the subject matter.

§ 453. XVII. In the next place, where technical words are used, the technical meaning is to be applied to them, unless it is repelled by the context.74 But the same word often possesses a technical, and a common sense. In such a case the latter is to be preferred, unless some attendant circumstance points clearly to the former. No one would doubt, when the constitution has declared, that “the privilege of the writ of habeas corpus shall not be suspended, unless” under peculiar circumstances, that it referred, not to every sort of writ, which has acquired that name; but to that, which has been emphatically so called, on account of its remedial power to free a party from arbitrary imprisonment.75 So, again, when it declares, that in suits at common law, etc. the right of trial by jury shall be preserved, though the phrase “common law” admits of different meanings, no one can doubt, that it is used in a technical sense. When, again, it declares, that congress shall have power to provide a navy, we readily comprehend, that authority is given to construct, prepare, or in any other manner to obtain a navy. But when congress is further authorized to provide for calling forth the militia, we perceive at once, that the word “provide” is used in a somewhat different sense.

§ 454. XVIII. And this leads us to remark, in the next place, that it is by no means a correct rule of interpretation to construe the same word in the same sense, wherever it occurs in the same instrument. It does not follow, either logically or grammatically, that because a word is found in one connection in the constitution, with a definite sense, therefore the same sense is to be adopted in every other connection, in which it occurs.76 This would be to suppose, that the framers weighed only the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen, and practical reasoners. And yet nothing has been more common, than to subject the constitution to this narrow and mischievous criticism. Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the constitution a word used in some sense, which falls in with their favorite theory of interpreting it, have made that the standard, by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning, when it seemed too large for their purposes, and extending it, when it seemed too short. They have thus distorted it to the most unnatural shapes, and crippled, where they have sought only to adjust its proportions according to their own opinions. It was very justly observed by Mr. Chief Justice Marshall, in The Cherokee Nation v. The State of Georgia,77 that “it has been said, that the same words have not necessarily the same meaning attached to them, when found in different parts of the same instrument. Their meaning is controlled by the context. This is undoubtedly true. In common language, the same word has various meanings; and the peculiar sense, in which it is used in any sentence, is to be determined by the context.” A very easy example of this sort will be found in the use of the word “establish,” which is found in various places in the constitution. Thus, in the preamble, one object of the constitution is avowed to be “to establish justice,” which seems here to mean to settle firmly, to fix unalterably, or rather, perhaps, as justice, abstractedly considered, must be considered as forever fixed and unalterable, to dispense or administer justice. Again, the constitution declares, that congress shall have power “to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies,” where it is manifestly used as equivalent to make, or form, and not to fix or settle unalterably and forever. Again, “congress shall have power to establish post-offices and post-roads,” where the appropriate sense would seem to be to create, to found, and to regulate, not so much with a view to permanence of form, as to convenience of action. Again, it is declared, that “congress shall make no law respecting an establishment of religion,” which seems to prohibit any laws, which shall recognise, found, confirm, or patronize any particular religion, or form of religion, whether permanent or temporary, whether already existing, or to arise in future. In this clause, establishment seems equivalent in meaning to settlement, recognition, or support. And again, in the preamble, it is said, “We, the people, etc. do ordain and establish this constitution,” etc. where the most appropriate sense seems to be to create, to ratify, and to confirm. So, the word “state” will be found used in the constitution in all the various senses, to which we have before alluded. It sometimes means, the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by these societies; sometimes these societies as organized into these particular governments; and lastly, sometimes the people composing these political societies in their highest sovereign capacity.78

§ 455. XIX. But the most important rule, in cases of this nature, is, that a constitution of government does not, and cannot, from its nature, depend in any great degree upon mere verbal criticism, or upon the import of single words. Such criticism may not be wholly without use; it may sometimes illustrate, or unfold the appropriate sense; but unless it stands well with the context and subject matter, it must yield to the latter. While, then, we may well resort to the meaning of single words to assist our inquiries, we should never forget, that it is an instrument of government we are to construe; and, as has been already stated, that must be the truest exposition, which best harmonizes with its design, its objects, and its general structure.79

§ 456. The remark of Mr. Burke may, with a very slight change of phrase be addressed as an admonition to all those, who are called upon to frame, or to interpret a constitution. Government is a practical thing made for the happiness of mankind, and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians. The business of those, who are called to administer it, is to rule, and not to wrangle. It would be a poor compensation, that one had triumphed in a dispute, whilst we had lost an empire;80 that we had frittered down a power, and at the same time had destroyed the republic.

I will continue to add the commentaries as I can get to them and as they become relevant to current conditions in the United States. The Preamble is the next in this series.

Please also see my series on the Rights of American Citizens starting with RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
My series on the non-revisionist history of the world beginning with Non-Revisionist Politically Incorrect History of the World With Biblical References Part 1

The Constitution in Plain English


Footnotes:

1.    “The government of the Union,” says Mr. Chief Justice Marshall, in delivering the opinion of the court in McCulloch v. Maryland, 4 Wheat. 316, “is emphatically and truly a government of the people. It emanates from them; its powers are granted by them, and are to be exercised directly on them and for their benefit.” Id. 404, 405; see also Cohens v. Virginia, 6 Wheat. R. 264, 413, 414. “The government of the United States was erected,” says Mr. Chancellor Kent, with equal force and accuracy, “by the free voice and the joint will of the people of America for their common defence and general welfare.” 1 Kent’s Comm. Lect. 10, p. 189.
2.    I have used the expressive words of Mr. Webster, deeming them as exact as any that could be used. See Webster’s Speeches, p, 410, 418, 419; 4 Elliot’s Debates, 338, 343.
3.    1 Black. Comm. 59, 60. See also Ayliffe’s Pandects, B. 1, tit 4, p. 25, &c.; 1 Domat. Prelim. Book, p. 9; Id. Treatise on Laws, ch. 12, p. 74.
4.    Id. See also Woodes. Elem. of Jurisp. p. 36. — Rules of a similar nature will be found laid down in Vattel, B. 2, ch. 17, from §262 to 310, with more ample illustrations and more various qualifications. But not a few of his rules appear to me to want accuracy and soundness. Bacon’s Abridg. title, Statute I. contains an excellent summary of the rules for construing statutes. Domat, also, contains many valuable rule in respect to interpretation. See his Treatise on Laws, c. 12, p. 74 &c. and Preliminary Discourse, tit. 1, §2, p. 6 to 16.
5.    Book 2, ch. 7, §3.
6.    The foregoing remarks are borrowed almost in terms from Rutherforth’s Institutes of Natural Law (B. 2, ch. 7, §4 to 11), which contain a very lucid exposition of the general rules of interpretation. The whole chapter deserves an attentive perusal.
7.    The value of contemporary interpretation is much insisted on by the Supreme Court, in Stuart v. Laird, 2 Cranch, 299, 309, in Martin v. Hunter, 1 Wheat. R. 304, and in Cohens v. Virginia, 6 Wheat. R. 264, 418 to 421. There are several instances, however, in which the contemporary interpretations by some of the most distinguished founders of the constitution have been overruled. One of the most striking is to be found in the decision of the Supreme Court of the suability of a state by any citizen of another state;* and another in the decision by the Executive and the Senate, that the consent of the latter is not necessary to removals from office, although it is for appointments.ϯ
*   Chisholm v. Georgia, 2 Dall. 419.
ϯ   The Federalist, No. 77.
8.    Mr. Jefferson has laid down two rules, which he deems perfect canons for the interpretation of the constitution.* The first is “The capital and lending object of the constitution was, to leave with the states all authorities, which respected their own citizens only, and to transfer to the United States those, which respected citizens of foreign or other states; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favor of the states in the former, if possible, to be so construed.” Now, the very theory, on which this canon is founded, is contradicted by the provisions of the constitution itself. I many instances authorities and powers are given, which respect citizens of the respective states, without reference to foreigners, or the citizens of other states.ĎŻ But if this general theory were true, it would furnish no just rule of interpretation, since a particular clause might form an exception to it; and, indeed, every clause ought, at all events, to be construed according to its fair intent and objects, as disclosed in its language. What sort of a rule is that, which, without regard to the intent or objects of a particular clause, insists, that it shall, if possible, (not if reasonable) be construed in favor of the states, simply because it respects their citizens? The second canon is, “On every question of construction [we should] carry ourselves back to the time, when the constitution was adopted; recollect the spirit manifested in the debates; and instead of trying, what meaning may be squeezed out of the text, or invented against it, conform to the probable one, in which it was passed.” Now, who does not see the utter looseness, and incoherence of this canon. How are we to know, what was thought of particular clauses of the constitution at the time of its adoption? In many cases, no printed debates give any account of any construction; and where any is given, different persons held different doctrines. Whose is to prevail? Besides; of all the state conventions, the debates of five only are preserved, and these very imperfectly. What is to be done, as to the other eight states? What is to be done, as to the eleven new states, which have come into the Union under constructions, which have been established, against what some persons may deem the meaning of the framers of it? How are we to arrive at what is the most probable meaning? Are Mr. Hamilton, and Mr. Madison, and Mr. Jay, the expounders in the Federalist, to be followed. Or are others of a different opinion to guide us? Are we to be governed by the opinions of a few, now dead, who have left them on record? Or by those of a few now living, simply because they were actors in those days, (constituting not one in a thousand of those, who were called to deliberate upon the constitution, and not one in ten thousand of those, who were in favor or against it, among the people)? Or are we to be governed by the opinions of those, who constituted a majority of those, who were called to act on that occasion, either as framers of, or voters upon, the constitution? If by the latter, in what manner can we know those opinions? Are we to be governed by the sense of a majority of a particular state, or of all of the United States? If so, how are we to ascertain, what that sense was? Is the sense of the constitution to be ascertained, not by its own text, but by the “probable meaning” to be gathered by conjectures from scattered documents, from private papers, from the table talk of some statesmen, or the jealous exaggerations of others? Is the constitution of the United States to be the only instrument, which is not to be interpreted by what is written, but by probable guesses, aside from the text? What would be said of interpreting a statute of a state legislature, by endeavoring to find out, from private sources, the objects and opinions of every member; how every one thought; what he wished; how he interpreted it? Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed, as to “the probable meaning” of the framers or of the people, what interpretation is to be followed? These, and many questions of the same sort, might be asked. It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text; but the words are to be bent and broken by the “probable meaning” of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own? The people adopted the constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men. The opinions of the latter may sometimes aid us in arriving at just results; but they can never be conclusive. The Federalist denied, that the president could remove a public officer without the consent of the senate. The first congress affirmed his right by a mere majority. Which is to be followed?
*    Jefferson’s Corresp. 373; Id. 391, 392; Id. 396.
ϯ    Jefferson’s Corresp. 391, 392, 396.

9.    1 Tucker’s Black. Comm. App. 151.
10.    B. 2, § 305.
11.    § 508.
12.    Rawle on the Constitution, ch. 1, p. 31.
13.    Martin v. Hunter, 1 Wheat. R. 304, 325.
14.    The Federalist, No. 37.
15.    Wheat. R. 304; S. C. 3 Peters’s Cond. R. 575.
16.    This is still more forcibly stated by Mr. Chief Justice Marshall in delivering the opinion of the court in McCulloch v. Maryland, in a passage already cited. 4 Wheat. R. 316, 402 to 405.
17.    See also McCulloch v. Maryland, 4 Wheat. R. 316, 402 to 406.
18.    See also Id. 222, and Mr. Chief Justice Marshall’s opinion in Ogden v. Saunders, 12 Wheat. R. 332.
It has been remarked by President John Q. Adams, that “it is a circumstance, which will not escape the observation of a philosophical historian, that the constructive powers of the national government have been stretched to their extremest tension by that party when in power, which has been most tenderly scrupulous of the state sovereignty, when uninvested with the authority of the union themselves.” He adds, “Of these inconsistencies, our two great parties can have little to say in reproof of each other.” Without inquiring into the justice of the remark in general, it may be truly stated. that the Embargo of 1807, and the admission of Louisiana into the Union, are very striking illustrations of the application of constructive powers.
19.    See Ogden v. Saunders, 12 Wheat. R. 332, Opinion of Mr. Chief Justice Marshall.
20.    See Gibbons v. Ogden, 9 Wheat. R. 189.
21.    Hunter v. Martin, 1 Wheat. R. 304, 326, 327; S. C. 3 Peters’s Cond. R. 575, 583.
22.    See Gibbons v. Ogden, 9 Wheat. R. 1,187, &c. 222, &c.
23.    See Sturgis v. Crowninshield, 4 Wheat. R. 112, 202.
24.    Mr. Justice Johnson, in delivering the opinion of the court in Anderson v. Dunn, (6 Wheat. 204, 226) uses the following expressive language: “The idea is Utopian, that government can exist without leaving the exercise of discretion some where. Public security against the abuse of such discretion must rest on responsibility, and stated appeals to public approbation. Where all power is derived from the people, and public functionaries at short intervals deposit it at the feet of the people, to be resumed again only at their own wills, individual fears may be alarmed by the monsters of imagination, but individual liberty can be in little danger.”
25.    See United States v. Fisher, 2 Cranch, 358; S. C. Peters’s Cond. R. 421.
26.    Sturgis v. Crowninshield, 4 Wheat R 122, 202.
27.    See Bacon’s Abridg. Statute I; Vattel, B. 2, ch. 17, § 277 to 285, 299 to 302.
28.    See Bas v. Tingey 4 Dall. R. 37; S. C. 1 Peters’s Cond. R. 221.
29.    Gibbons v. Ogden, 9 Wheat. R. 1,188, 189.
30.    2 Dall. R. 419; S. C. 2 Cond. R. 635, 652.
31.    Bacon’s Abridg. Statute 1. 8.
32.    The Federalist, No. 44.
33.    The reasoning of Mr. Chief Justice Marshall on this subject, in McCulloch v. Maryland, (4 Wheat. 316) is so cogent and satisfactory, that we shall venture to cite it at large. After having remarked, that words have various senses, and that what is the true construction of any used in the constitution must depend upon the subject, the context, and the intentions of the people, to he gathered from the instrument, he proceeds thus:

The subject is the execution of those great powers, on which the welfare of a nation essentially depends. It must have been the intention of those, who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits, as not to leave it in the power of congress to adopt any, which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means, by which government should, in all future time, execute its powers, would have been to change entirely the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies, which, if foreseen at all, must have been seen dimly, and which can be best provided for, as they occur. To have declared, that the best means shall not be used, but would deny a choice of means to execute the power, would reduce the power itself to a nullity. For, as it never could be demonstrated, that any one mode in particular was intended, and to be exclusively employed; and, as it might be demonstrated, that other means might be employed, the question, whether the power were rightfully put into exercise, would for ever be subject to doubt and controversy. 1 If one means is adopted to give it effect, and is within its scope, because it is appropriate, how are we to escape from the argument, that another, falling within the same predicament, is equally within its scope? If each is equally appropriate, how is the choice to be made between them? If one is selected, how does that exclude all others? If one is more appropriate at one time, and another at another time, where is the restriction to be found, which allows the one, and denies the other? A power granted in a frame of government is not contemplated to be exhausted in a single exertion of it, or uno flatu. It is intended for free and permanent exercise; and if the discretion of the functionaries, who are to exercise it, is not limited, that discretion, especially, as those functionaries must necessarily change, must be coextensive with the power itself. Take, for instance, the power to make war. In one age, this would authorize the purchase and employment of the weapons then ordinarily used for this purpose. But suppose these weapons are wholly laid aside, and others substituted, more efficient and powerful; is the government prohibited from employing the new modes of offence and defence? Surely not. The invention of gunpowder superseded the old modes of warfare, and may perhaps, by future inventions, be superseded in its turn. No one can seriously doubt, that the new modes would be within the scope of the power to make war, if they were appropriate to the end. It would, indeed, be a most extraordinary mode of interpretation of the constitution, to give such a restrictive meaning to its powers, as should obstruct their fair operation. A power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to be their intention, to clog and embarrass its execution, by withholding the most appropriate means. There can be no reasonable ground for preferring that construction, which would render the operations of the government difficult, hazardous, and expensive; or for imputing to the framers of the constitution a design to impede the exercise of its powers, by withholding a choice of means.*So, with respect to the whole penal code of the United States: whence arises the power to punish, in cases not prescribed by the constitution? All admit, that the government may legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of congress. The right to enforce the observance of law, by punishing its infraction, might be denied with the more plausibility, because it is expressly given in some cases. Congress is empowered ‘to provide for the punishment of counterfeiting the securities and current coin of the United States,’ and ‘to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.’ The several powers of congress may exist, in a very imperfect state to be sure, but they may exist, and be carried into execution, although no punishment should be inflicted in cases, where the right to punish is not expressly given.Take, for example, the power ‘to establish post offices and post roads.’ This power is executed by the single act of making the establishment. But, from this has been inferred the power, and duty of carrying the mail along the post road, from one post office to another. And, from this implied power has again been inferred the right to punish those, who steal letters from the post office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those, who rob it, is not indispensably necessary to the establishment of a post office, and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record, or process of a court of the United States, or of perjury in such court. To punish these offences is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment.The baneful influence of this narrow construction, on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced without hesitation, that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise.ĎŻ

*   McCulloch v. Maryland, 4 Wheat. R. 316, 408.
ĎŻ     See United States v. Fisher, 2 Cranch, 358; S. C. 1 Peters’s Cond. R. 421, 429.
34.    See the remarks of Mr. Justice Johnson, in delivering the opinion of the court in Anderson v. Dunn, 6 Wheat. R. 204, 226; United States v. Fisher, 2 Cranch. 358; S. C. 1 Peters’s Cond. R. 421, 429.
35.    McCulloch v. Maryland, 4 Wheat. R, 316, 409, 410, 421, 423; United States v. Fisher, 2 Cranch, 358; S. C. 1 Peters’s Cond. R. 421.
36.    The Federalist, No. 33, 44; McCulloch v. Maryland, 4 Wheat. R. 316, 423.
37.    In the discussions, as to the constitutionality of the Bank of the United States, in the cabinet of President Washington, upon the original establishment of the Bank, there was a large range of argument, pro el contra, in respect to implied powers. The reader will find a summary of the lending views on each side in the fifth volume of Marshall’s Life of Washington, App. p. 3, note 3, &c.; 4 Jefferson’s Corresp. 523 to 526; and in Hamilton’s Argument on Constitutionality of Bank, 1 Hamilton’s Works, 111 to 155.
38.    Anderson v. Dunn, 6 Wheat. 204, 226.
39.    Article 2.
40.    Per Mr. Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat R. 316, 406, 407, 421.
41.    The Federalist, No. 33.
42.    The Federalist, No. 44.
43.    The Federalist, No. 44.
44.    The Federalist, No. 32.
45.    See Huston v. More, 5 Wheat. R. 1, 22, 24, 48; Ogden v. Gibbons, 9 Wheat. R. 1, 198, 210, 228, 235; Sturgis v. Crowninshield, 4 Wheat. R. 122, 192, 193; Ogden v. Saunders, 12 Wheat. 1, 275, 307, 322, 334, 335.
46.    Sturgis v. Crowninshield, 4 Wheat. R. 122, 192, 193; Gibbons v. Ogden, 9 Wheat. R. 1, 198, &c.
47.    The Federalist, No. 32; Gibbons v. Ogden, 9 Wheat. R. 1,198, 199 to 205; McCulloch v. Maryland, 4 Wheat, R. 316, 425.
48.    Gibbons v. Ogden, 9 Wheat. R. 1, 205. — Mr. Chancellor Kent has given this whole subject of exclusive and concurrent power a thorough examination; and the result will be found most ably stated in his learned Commentaries, Lecture 18. 1 Kent Comm. 364 to 379, 2d edit. p. 387 to 405.
49.    Ware v. Hylton, 3 Dall. 199, S. C. 1, Conden. R. 99, 112,127, 128, 129; Gibbons v. Ogden, 9 Wheat. R. 1, 210, 211; McCulloch v. Maryland, 4 Wheat. R. 316, 405, 406, 425 to 436 Houston v. Moore. 5 Wheat. R. 1, 22, 24, 49, 51, 53, 56; Sturgis v. Crowninshield, 2 Wheat. R. 1, 190,196; Golden v. Prince, 3 Wash. C. C. R. 313, 321; The Federalist, No. 32; Brown v. Maryland, 12 Wheat. R. 419, 419.
50.    McCulloch v. Maryland, 4 Wheat. R. 316, 426.
51.    Sturgis v. Crowninshield, 4 Wheat. R. 1, 193.
52.    Mr. Justice Washington, Houston v. Moore, 5 Wheat. R. 1, 21, 22.
53.    5 Wheat R. p. 22.
54.    Id. 24. See also Golden v. Prince, 3 Wash. C. C. R. 313, 324, &c.;
55.    Sturgis v. Crowninshield, 4 Wheat. R. 122, 195, 196. See also Gibbons v. Ogden, 9 Wheat. R. 1, 197, 227, 235, 238; Houston v. Moore, 5 wheat. R. 34, 49, 52, 54, 55. — This opinion, that the power to pass bankrupt laws is not exclusive, has not been unanimously adopted by the Supreme Court. Mr. Justice Washington maintained at all times an opposite opinion; and his opinion is known to have been adopted by at least one other of the judges of the Supreme Court. The reasons, on which Mr. J. Washington’s opinion is founded, will be found at large in the case of Golden v. Prince, 3 Wash. C. C. R. 313, 322, &c. See also Ogden v. Saunders, 12 Wheat. R. 213, 264, 265, and Gibbons v. Ogden, 9 Wheat. R. 1, 209, 226, 238.
56.    Houston v. Moore, 5 Wheat. R. 1, 49, 55, 56.
57.    See Gibbons v. Ogden, 9 Wheat. R. 1,197, 210; McCulloch v. Maryland, 4 Wheat. R. 316, 527.
58.    McCulloch v. Maryland, 4 Wheat. R. 316, 431.
59.    Ibid.
60.    Id. 432.
61.    Houston v. Moore, 5 Wheat. R. 1, 53.
62.    Houston v Moore, 5 Wheat. R. 50, 51, 52.
63.    Id. 54, 55.
64.    Sturgis v. Crowninshield, 4 Wheat. 122, 195, 197, 199; Gibbons v. Ogden, 9 Wheat. R. 1,196,197, 209.
65.    See Gibbons v. Ogden, 9 Wheat. R. 1, 203 to 210.
66.    See The Federalist, No. 83, 84.
67.    Cohens v. Virginia, 6 Wheat. R. 395 to 401.
68.    The Federalist, No. 83.
69.    The Federalist, No. 83. See Vattel, B. 2, ch, 17, §282.
70.    The Federalist, No. 83.
71.    Mr. Madison’s Letter to Mr. Cabell, 18th September, 1828.
72.    See Vattel, B. 2, ch. 17, §262, §299.
73.    The Federalist, No. 37.
74.    See Vattel, B. 2, ch. 17, §276, 277.
75.    Ex parte Bollman & Swartout, 4 Cranch, 75; S. C. 2 Peters’s Cond. R. 33.
76.    Vattel, B. 2, ch. 17, §281.
77.    5 Peters’s Rep. 1, 19.
78.    Mr. Madison’s Virginia Report, 7 January, 1800, p. 5; ante, §208, p. 193.
79.    See Vattel, B. 2, ch. 17, §285, 286.
80.    Burke’s Letter to the Sheriffs of Bristol in 1777.

Rights of American Citizens: The policy which ought to be pursued by the federal government in relation to commerce

DoCThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

Continued from RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to manufactures

PART III; OF THE POLICY WHICH OUGHT TO BE PURSUED BY THE GENERAL GOVERNMENT IN RELATION TO AGRICULTURE, MANUFACTURES, AND COMMERCE.

CHAPTER III; Commerce.

On this exhaustless subject, a few passing remarks only will be hazarded. Not because, as some suppose, the principles of science in relation.to it, can be comprehended by merchants only; but because the minute details, which alone require prolonged discussion, are of little consequence to general readers, and yet can only be obtained by a practical acquaintance with trade.

It is somewhat singular, that merchants of long experience and supposed sagacity, who have acquired and amassed great fortunes in youth, sometimes lose their property and fail, at a time of life, when, if ever, the judgment ought to be in its highest perfection. On the other hand, it is not less singular, that some persons of small acquirements and very moderate capacity, sometimes acquire great wealth by commerce in a very few years. The bad result in the former case, and the good one in the latter, however, are sufficient to show, that, in commerce, sagacity and experience, are not absolutely necessary to obtain success, and, what is worse, are not sufficient to insure it. It follows, that no infallible principles are derivable from mercantile experience, which will guaranty invariable prosperity even to the merchant’s private affairs; and much less, to those of the public.

The reason is, that the knowledge acquired by experience, consists only of those facts and details, which are necessary to carry on the particular branch of trade in which the individual happens to be engaged, but which have no general application to the interests of the public. For, the interest of the merchant, and that of the public are two different things, having no necessary connexion, any further than that the wealth of a a merchant is a constituent part of the whole wealth of the community, of which he is a member.

In order to have distinct ideas on this subject, as well as to form a correct opinion how far commerce is advantageous to a country, it will very shortly be considered under the heads of domestic trade, importation, exportation, and the carrying trade. These will be considered as entirely distinct, though it may very well happen, that two or more of these operations, may be performed in any single extensive commercial transaction.

1. Domestic trade is obviously of the highest importance to a community. Without it society could not well continue at all, but men would exist merely as solitary savages, in a state of perfect independence. For, it is almost impossible, that intercourse should be kept up among mankind, without those mutual dealings and contracts, in all of which some principle of exchange and barter, is necessarily more or less involved. If a hatter should barter a hat to a shoemaker for a pair of shoes; if a carpenter should contract, with a farmer to build him a shed, for a certain number of bushels of wheat; or, if two farmers should agree to exchange work, it might be considered as constituting an operation of internal trade, as much as a direct purchase for money.

It is of the utmost consequence to society, that this home trade should be as free from restraint as possible; because it is more convenient, that the citizens should supply each other with the respective products of their labor, than that each individual should undertake to be his own carpenter, batter, blacksmith, &c, and thus vainly attempt to supply his wants by his own personal labor in those various trades. For, in this way, each individual would be able to do but little work, and that would be done badly. But the division and distribution of labor, enable each individual to have an abundance of every kind of work, and well executed. The policy of taxing sales by auction, or of licensing auctioneers, retailers, inn-holders, pedlars, &c., does not come within the scope of this work. On the subject of home trade, therefore, it seems superfluous to enlarge, because, with the above suggested exceptions, it is left in perfect freedom.

2. Foreign trade; exportation, &c. With regard to foreign trade, its value to the country depends entirely upon the comparative value in use, between the articles exported and those imported in return.

In commerce, exportation as well as importation may be either advantageous or disadvantageous to the country.; and consequently in a single exchange of exports for imports, either a double loss, or a double gain may arise to it.

The most disadvantageous trade to a state that can be carried on, is where the exported articles are the necessaries of life, and the imports are not only incapable of supporting life, but tend to destroy it. It is not to be expected, that any country will long continue to increase in population, where a trade of this kind is carried on. If, therefore there should be exported from a country beef, pork, fish and corn, though, at the highest price in money, and that money should immediately be re-invested in brandy, wine, rum, gin, and other things equally incapable of supporting life, and equally injurious to health which should be brought back for home consumption, though at the cheapest rates, such commerce would be the most destructive to the prosperity of a state, that can be conceived. It is true, the merchant might be accumulating immense sums from such a business, and might suppose, from his own prosperity, that he was doing the public a great service; but, it is equally true, that he could not, if he were disposed, do a greater mischief to the public, than to buy up the necessaries of life and ship them abroad, and bring back such articles as have been named and expose them for sale throughout the country. In such a case as this, the merchant, if he grew rich, would fatten on the ruin of his country. For, by buying up the necessaries of life, and paying for them, directly or indirectly, in such commodities, supposing them to be merely useless, though they are in fact pernicious, he renders the production of the necessary articles exported, wholly vain, the labor bestowed on them being thrown away. The delusion which the producer would labor under would be this, that he should get a high price for his produce; but he forgets that it is paid in an article which is worthless in use. If it should be replied, that be can sell it to his neighbor and get a high price for it; still it is obvious the injury to the state is the same, though the loss falls on the thoughtless, and not on the designing and guarded. Any rich and powerful state, that finds its population at a stand, or increasing in too slow a ratio on account of emigration, would do well to look to this. For, in no case whatever, is the prosperity of the merchants, a test of the advantage of trade to the country. But this test will always be found in the consequent prosperity of the producer of exported articles, whether manufacturer or husbandman, &c., and the prosperity of the consumers of the imported ones.

That the prosperity of a merchant, is no test of the advantage of the trade he carries on, to the state, may easily be shown; because, however profitable a trade might be to the state, all the merchants concerned in it may lose money by it and be compelled to abandon it. On the other hand, however ruinous any trade may be to the state, it is very possible that the merchants may grow rich by it. The direct foreign trade, therefore, ought never to be encouraged for the sake of the interest of the merchants, but, for the sake of the public interest, which are two very distinct things. Where they are compatible—where the trade is for the advantage of the public, it should be encouraged; but, where incompatible, and where the trade is pernicious to the public interest, the interests of the state ought not to be sacrificed to favor those of a comparatively small number of persons. The hackneyed expression, laissez nous faire, in this case, would be as absurd as unbecoming; the merchant here is a mere carrier, and not a party in interest, any further than his commissions or profits are concerned. The trade is carried on for the advantage of the community, and not for the sake of giving him an opportunity to make money.

2. Where the merchant exports the surplus manufactures of a country, beyond what is necessary for home consumption, and brings back the necessaries or conveniences of life, he carries on a trade which is highly advantageous to the country. In the first place, he increases the demand for the home manufactures; consequently he enables more persons to support themselves by manufacturing; in this way, he increases population. In the next place, by bringing back the necessaries of life, he increases the supply in the slate, which operates in the same manner as a blessing would do, which should increase the annual produce of the soil; this also would tend to increase the population; for, wherever the necessaries of life are cheap, population will increase. If it should be said, this would discourage agriculture; the answer is, it would not prevent any man from cultivating his farm. On the contrary, as he found produce cheap, he would endeavor to raise more, so as to compensate in quantity for the lowness of the price; its tendency, therefore, would rather be to increase the production of agriculture. But, if the products of agriculture, on account of their abundance, became very low in price, many persons, who otherwise would have engaged in it, will betake themselves to other occupations, as the various trades, or manufactures, or commerce,, which, in consequence of the cheapness of necessary articles, would afford them opportunities of getting a living with very moderate labor. Thus, there would be a permanent increase of population, distributed equally in all the various classes of society, which always soon finds its level in this respect.

For, the high price of manufactures is attributable in part, at least, to the high price of labor; the high price of labor is owing to the high price of the necessaries of life. The high price of the necessaries of life, must necessarily follow extensive purchases of them for exportation and returns made in luxuries, superfluities or foreign goods generally, not being necessaries. If then the necessaries of life are retained, labor will become cheap in comparison with every thing but those necessaries. Consequently manufactures will grow cheaper, and there will be less necessity for protection against the competition of foreigners. Manufacturing companies therefore ought not to despair, even if the tariff should be taken off, as a measure might be suggested, which it is thought would be a palliative far its removal, if not a substitute for its continuance.

But, though such a trade would be highly advantageous to the state, it obviously might or might not, be ruinous to the merchants engaged in it, according to the state of the markets at home and abroad, and their prudence or imprudence in the management of their business. This is another proof, that the prosperity of the merchant, is not the slightest test of the public benefit of the trade, in which he is concerned.

Whence does the merchant derive his wealth in this case? Certainly it consists in the profits, which he receives from the consumer of the goods which he imports. The consumer endeavors to obtain the foreign goods as cheap as possible, the merchant endeavors to obtain for them as high a price as possible. In this particular the interests of the two are incompatible, and either may grow rich at the expense of the other. But, it is the interest of the state, that the surplus over consumption should be exported, and a return made of other articles, of equal utility, and not easily obtained otherwise. In this respect the interests of the merchants, and those of the producers of exports, and the consumers of imports, and consequently, of the whole state, strongly coincide. Commerce is here of the highest importance. It creates a new value. It performs in effect the operation of production. There is no measure of encouragement or protection, that commerce of this kind can reasonably require, that should not immediately be bestowed; and, here there is no danger, that laissez nous fuire, would ever be heard.

USChamberBut, a duty on the necessaries of life, imported from abroad, is a very great absurdity. For, what can be the object of it? Political partisans perhaps will say, that it is laid for the purpose of protecting national industry from the competition of foreigners. This is done by laying so heavy a duty on foreign production, that it will be wholly excluded from the market, and thus domestic produce will have the whole market secured to itself. But, the consequence will be, that the prices of the necessaries of life, will rise higher than before. The farmers will sell their produce at almost any price they please, unless the competition among them keeps it down. It will gradually, however, come to a level with other kinds of business; because so many will betake themselves to the cultivation of the soil, that they will fully supply the market, if the territory of the state, which can be come at, is sufficient for that purpose.

The farming business, in this case, will .have a great advantage secured to them in this monopoly; but, it will be at the expense of the manufacturers and the rest of society. This is clear; because, if foreign produce were admitted, the domestic produce would conform to it in price. But, if the foreign is excluded, then domestic produce rises to whatever the producers shall agree among themselves to demand. For, the necessaries of life must be had, if possible, from some source or other. And this necessity, if the producers can agree in demanding an exorbitant price, will put the rest of society at their mercy. For, the tendency of such a law is to reduce the rest of society under the control of the producers, in the same manner as the whole nation of the Egyptians were reduced by the policy of Joseph.

It is inexpedient, therefore, to impose any duty on foreign produce of the necessaries of life, because it so far checks an increase of population. Further, if home production is sufficiently abundant, then such an import would be superfluous; because, then the price of foreign produce would not pay for importing. On the other hand, if the price of foreign produce would pay for importing, then the domestic must be proportionally scarce. But true policy requires that the necessaries of life, should be as cheap and abundant as possible.

There is a strange error prevailing in the minds of some politicians, who assume that whatever increases consumption, increases production also, in the same proportion. For, they reason thus, whatever consumes an article in the market, raises the price of it. The increase of price, enables those who produce the article, to get more money for their labor than they can in other productions; they therefore bestow more labor in producing it, and others also .are induced to neglect other business, and to bestow their labor in the same way, and with the same expectations. But, notwithstanding this plausible theory, if the consumption is not for some valuable purpose, the labor of producing what is consumed, is entirely thrown away. The production consequently is of no use whatever. Suppose a state, capable of producing the necessaries of life, for 10,000,000 of people, were unhappily bound by a necessity to export 9-10ths of its whole produce, and receive a return in imports of jewelry, brandy, rum, wine, and other articles not capable of sustaining life, is it not clear that such commerce, though it might enrich the inhabitants with an abundance of expensive and perhaps ornamental articles, would yet so completely check its prosperity, that it could never reach more than one tenth of the population, which it could sustain. Such commerce would therefore be highly ruinous to the state, though the merchants, if they carried it on would grow rich by the profits they made by it. But though such state would thus check its growth and throw away the advantages which nature had given it, by selling its birthright in effect like the ignorant Indians for a string of beads, or a cask of brandy, the foreign producer or manufacturer of such worthless articles, would fatten on the folly or wretchedness of the inhabitants of such state. For,’the population which might be sustained here, would be supported abroad by supplies drawn from this country. And the seven lean kine would thus devour the seven well favored; and the most barren and unfruitful country, incapable of itself of sustaining a single inhabitant, might by such commerce, become as populous as China, and the country with which it traded, though as fertile as the garden of Eden, would never contain more inhabitants, than enough to till it for the sake of those foreign consumers.

To what extent these remarks are applicable to the commerce of any of the United States, let each reader judge for himself.

In 1822, there was exported from the United States, in fish, $930,000; in flour, $5,300,000; in rice, $1,000,000;’in pork, 1,400,000; in corn, meal, rye, he, $1,100,000; in butter and cheese, 220,000. Total $10,550,000.

In the same year there was imported into the United States, exclusive of what was re-exported, in wine, $1,700,000; in spirits, $2,300,000; in teas, $ 1,200,000; in cigars, $ 174,000. Total $5,374,000.

As these last articles were the balances remaining after re-exportation, they must he considered as designed for consumption. Now, to the United States, it is of no sort of consequence whether these imports were purchased with the proceeds of those exports or not, because, the result is the same. For, so far as the exportation of these necessaries of life, and the importation of these pernicious or useless articles, the produce of the United States is wasted; the productive labor has been employed for the mere benefit of those foreigners whose . wines, &c, have been purchased, and who have been supported abroad, instead of an equal number of people who would be supported in the United States, if the necessaries of life had not been exported. This species of commerce, it should be remembered, is to be considered as perpetual; consequently the United States are always to be taxed in this extraordinary manner for the support of foreigners, and the fertility of the soil is to be changed for sterility, and sterility upon which annual labor is thus thrown away.

3. There is another species of commerce, which consists of what is called the carrying trade. Though this is usually combined with the other operations of exporting and importing, yet, as it is so far subject to the remarks made in relation to them; and, as it may be carried on in a manner entirely independent of those operations, so far as the merchant’s own country is concerned, it will here be considered simply as the carrying trade.

Where a merchant in this country employs his capital in carrying merchandize backwards and forwards between two foreign countries, the public here derive the following advantages from it. 1. Though he makes his money abroad, yet he spends it here; as he increases in wealth, therefore, he adds proportionally to the wealth of the state where he resides, without any drawback whatever on the part of the state. 2. All those citizens, whom he employs in the management of his affairs at home or abroad, he supports out of the profits of his trade. He, therefore, so far increases the population of the society, by furnishing these citizens with the means of earning a living, without the least expense whatever to the state. This is evident, because if he saw fit, he might remove to some other country and employ others in their room; in which case, those citizens who are now employed. by him, would be obliged to derive it from some other source either at home or abroad. If at home, they would be obliged to come into competition with others. If abroad, the population would be diminished by their number. Merchants so circumstanced, it is obvious, deserve every countenance and encouragement to reside in the state. Because, their prosperity or adversity, to a certain degree, affects that of the state; and they bear part of its burdens, but add nothing to them.

CONCLUSION: On the Future Prospects of the United States.

Perhaps no country can, with more propriety, be said to have its destiny in its own power, than the United States. Having a local situation, remote from all nations, which are sufficiently powerful to endanger its independence; a population already sufficiently numerous for a great empire, yet rapidly increasing and spreading over its extensive territory; a climate, temperate and generally salubrious; a soil, fertile, and abundant in variety and production; a people, bold, enterprising and intent upon their interests; a frame of government, in which the choice of rulers depends on popular suffrages, and mild and indulgent; containing within itself a power to reform and amend, without any necessity of resorting to primary assemblies; which imposes few or no restraints, merely arbitrary, or which are grounded on policy alone; and consequently secures to its citizens the enjoyment of liberty to its utmost rational extent; under such circumstances, it would seem impossible that the United States should ever fall from their elevated rank among nations, into a state of weakness and contempt, unless they should occasion their own. decline, by the imprudence or rashness of their national policy, or should bring upon themselves ruin and destruction, as a judgment from heaven.

The advantage which a free elective government has over others, presupposes, in the majority of the electors, sufficient discernment to compare the characters and capacities of candidates for office, and requires, that in making a selection, they should be actuated by proper motives. If the former is wanting, there can be no certainty that they will elect the best candidate; if the people vote under unsuitable influence, it is almost certain that a bad choice will be the result.

Among the motives which frequently govern the popular choice, perhaps there is none worse than the influence of party. For, it is characteristic of this influence, as sometimes exhibited both in elections by the people, and appointments by rulers, that it does not seek either for a man of talents, and integrity, great acquirements, or industry, or well acquainted with the duties of the office. Such qualifications without more, though amply sufficient for the purposes of the public, are no qualifications at all in a party view. For, here the only necessary qualifications are, that the character of the candidate should not be so bad, nor his incapacity so flagrant, as to disgrace his party; but he must be the right kind of man to serve the turn of the party, and in case of appointments through party influence, he must either have rendered party services, or be recommended by some one who has, Sec.

The country of a partisan, to which he considers himself as owing the duty of patriotism, will be found, on examination, to mean nothing more than the party to which he belongs. It is this false god, that, in political affairs, governs his conscience, and constitutes his standard of right and wrong. The mental subjection of the followers of party, is therefore most miserable. For, until they know what their leaders think, they must not venture to form an opinion for themselves, for fear they may afterwards be obliged to recant it. Their ruling principle therefore is, neither truth, justice, or the interests of the country, but it is, To Be True To The Party.

And by what motives does party induce the citizens thus to follow her through right and wrong indiscriminately? The leaders are actuated by the hopes of personal distinction, or other advantage; the partisans are governed chiefly by the gregarious principle, though the personal influence of those leaders, exerted in numberless ways, must not be omitted. But, it may be asked, may not the citizens unite together for the purpose of attaining some object of general utility, without being obnoxious to the charge of forming a party or faction? Undoubtedly they may do so; for their acts are then for the good of the country; and not for the advancement of party purposes; and therefore in such a case there is no necessity for party names or distinctions.

In many instances, parties have originated with ambitious individuals, who, conscious of a want of desert for the distinctions at which they aim, have resorted to cabals and intrigues to induce persons who were not well informed, to join themselves to them as his followers. One of the earliest factions on record, is that of Abimelech. See Judges, Ch. ix. The direful effects of factions and parties in Rome, Carthage, Jerusalem, &tc. in ancient times, and in Italy, France, England and Ireland, &c. from the middle ages down to the present day, warrant the opinion, that as they are almost inseparable from governments under which any portion of liberty is enjoyed, and are violent in proportion to that liberty, so they are one of the greatest evils that can infest society.

As soon as any combination of persons become a permanent body, begin to act separately from “the rest of society, assume a peculiar designation, are organized with officers, and under the guidance of leaders, they are factious, and are dangerous to the public tranquility according to the proportion which their numbers bear to all the rest of society. It is true, so long as there is nothing more to excite them, than the usual contests at elections, they may do no great harm; but, experience shows, that whenever anything uncommon occurs, to rouse their passions, there is no act of violence or excess, to which they may not be incited. And whenever the country shall be so completely divided into factions, that every one shall find himself compelled to side with one or another, in order to escape incivility, the moral sentiments of society will, be proportionally degraded and debased. Should its violence ever rise to a great height, the only safety for the peaceful citizens will be to stand by the constitution and laws, and take care that they are not violated, under a pretense of reforming abuses.

What palliative can be found for this evil? Take away from the president the sole power of removing, appointing or even nominating public officers, any further than it is expressly bestowed in the constitution. Disqualify members of congress for all other public offices, during the term for which they are elected, not merely during their term of office. Suffer no removals from one public office to another.

These regulations would diminish in some measure the prize of ambition, would take away some of the subject matter of promises, intrigue and corruption, and consequently would cool the patriotism of the leaders of factions, and perhaps hush that eloquence, which so much attracts the less informed part of the people.

So long as the different parties are completely intermingled with each other throughout the country, there will be but little danger of public commotions from factions, however unfavorably the peace and tranquility of private intercourse may be affected by angry discord; but, as soon as the parties come to be defined by the limits of states and territories, there will be immediate danger of public disturbances. The minority, out of power, in any such case, will always be apt to consider the public measures of the majority, in power, as tyrannical and oppressive, and contrary to law and the constitution; and when things have come to this pass, there never will be wanting demagogues to excite sedition, insurrection, and civil war, and dupes and disorderly persons, to follow such leaders in their career of violence and wickedness, from a hope of obtaining that distinction, in times of public disturbance, which they are conscious will otherwise be unattainable.

It is the duty, therefore, of every conscientious citizen, and the interest of every peaceable one, to discountenance, as much as possible, all party distinctions and divisions generally; but especially, to prevent their becoming sectional. It is for this reason, the majority in congress, when not urged by some paramount obligation of justice, should be extremely cautious of exercising any power, of the constitutionality of which there exists a doubt, from mere considerations of general expediency, when the minority consists of one or more states, the citizens of which may consider themselves injured by it. For, if such a case should ever occur, there is hardly an argument, that was formerly urged against the oppression of the British government before the revolution, which state patriots will not revive, and apply, whether right or wrong, to excite the people of their states to resist the general government. The people also would do well, to thrust back into private life those office seekers, who personally, or by the agency of political partisans, under patriotic pretenses, obtrude themselves upon the citizens, and seek their suffrages at elections, but who care not what evils they bring upon their country, so that they obtain their own ends. But though, agreeably to the theory of the admirable constitution under which we live, every fault in legislation, and every deficiency in itself, may be easily corrected or amended, without disturbing the public tranquility; yet, in practice a degree of intelligence is required in the people, to perceive the necessity of such, amendments and corrections, and agree in the choice of legislators who will make them, that history and observation teach us, is too much to expect of a numerous population. This defect, therefore, where it exists, will probably be found incurable; because the want of intelligence and discernment is not obviated by the mere exercise of the will. For, it is not infrequent to find that individuals, of contracted minds and small information, take an envious satisfaction in opposing the measures of persons, whom they know to possess more discernment.

It is on persons of such a character, as well as the ignorant and imbecile generally, that designing men operate, by flattering their prejudices, tantalizing their envy, and exciting their suspicions; and by such arts become popular with them. If the time should ever come, therefore, when the majority of the people shall be of this class, and be under such guidance, how will it be possible, that any fault in its legislation, or defect in its frame of government should be remedied, when the very defect itself, will furnish food for the ambition of the leaders of the majority and the means of rewarding their followers? For, that no such defect will ever be corrected or amended, where those, who have the power, consider it inconsistent with their interests to do it, requires no proof. Let us turn our eyes abroad. The British empire has been for many years laboring under the pressure of a number of great political evils and embarrassments. Yet, instead of removing the true causes of those evils, they have been endeavoring to procure a reform of certain minor abuses and corruptions, which, if removed, will improve the condition of the country in a small degree only. Yet this inconsiderable reform has been most strenuously urged and opposed, and great eloquence and oratory has been exhibited on both sides.

But measures, the policy of which is obvious to every intelligent person, and which would remedy many of the evils under which that mighty empire languishes, are hardly mentioned. To pay the national debt of Great Britain; abolish tythes; enable the industrious to earn a living by moderate labor; to improve the pauper system, by employing the poor in such a manner as to support themselves; to reform the cruel criminal code, and at the same lime render it unnecessary; to convert the vicious population of the larger cities into honest and industrious citizens, by furnishing them with sufficient employment; measures which would naturally assist each other and contribute to the same end, one would suppose to be such that in comparison with either of them, a reform in parliament, would amount to nothing at all. Yet, if the parliament were willing that these measures should be adopted, it is believed these objects might all be effected within a moderate number of years. Tythes might be gradually and completely abolished in one generation, by passing a law to discontinue them at the death of the present clerk of each parish respectively. The evils arising from an unequal distribution of property, would be gradually diminished by enabling all children to inherit equally. The application of a just principle, but which perhaps is not thought of, would immediately put the British National Debt in a state of liquidation; to the great relief of the nation’s taxes, yet without defrauding the public creditor of one farthing of his due, &c. But, if measures like these, should be repugnant to the feelings, or considered inconsistent with the interests of men in power, it would be vain to expect they wotdd be adopted, though they would cause the British nation to be one of the happiest as well as most powerful on earth, and would render the reign of William IV, the most glorious since the conquest.

The case in this country is analogous. The people will never be able to get back power or influence from the hands of their rulers, if once intrusted with it. For, abuses, corruptions, &c. always tend to continue themselves until they destroy their subject, and then all perish together. For instance, suppose the people should think the president’s official patronage conferred on him by the laws of the United States, too great and of a pernicious tendency, how can they take it away? By law? The president may not consent, and the direct or indirect influence of that very patronage, may very possibly prevent the passage of the law by a majority of two thirds. This demonstrates the propriety of rendering all members of congress, incapable of any other office during the term for which they are elected, which would render them entirely free from the slightest bias. But will the people ever be able to induce the members of congress, to consent to make this alteration? On the contrary, though the expediency of it is evident to every person’ of ordinary information, the people will1 sooner be persuaded by their representatives, that such alteration would be bad policy. For similar reasons, h is hardly to be expected, that any president will ever consent that his power of removal from certain offices, should be taken away from him; of, that the people should ever be able to choose legislators, the majority of whom will be sufficient to effect that measure. For, office seekers, who, indirectly or directly, manage so as to control the voice of the people of their party, would lose all motive to elect or to remove any president, if the office of president should lose the power of removing officers; because1 a new president would have no offices to distribute among his’ supporters.

If, therefore, the people would wish to be liberated from indirect thraldom of this kind, by which they so often find themselves hampered and shackled, without knowing how it happens, or in what it consists, they must throw off the livery of party, and not suffer office seekers or office holders, to influence their conduct; and, if ever an opportunity presents to reclaim those powers, take care for the future to grant no more such.

An unfortunate circumstance, attending all popular governments where the people choose their own rulers, is, that the choice is frequently grounded on no other merit or qualification, than an acceptable manner of haranguing the populace. It is very singular that volubility, fluency, and loquacity, which, with men of observation, are considered a proof of any thing but wisdom or ability, should be the only criterion of those qualifications, which the people have. In consequence of this wrong estimate, these accomplishments are made too much the objects of ambition, and any further knowledge and acquirements than may be used in flights of oratory, are considered superfluous. Those persons, however, who expend so much time in learning to speak well, must evidently do it at the expense of more valuable acquisitions. And what would be the consequence if all members of the general legislature, were great orators? 1. The sessions of congress would be very much prolonged, because every member must have an opportunity of making one or more, vainglorious speeches. 2. Business would consequently be delayed; yet finally be hurried through, or else left half done and postponed to the next session. 3. Emulation, degrading strife, and angry and indecent contention would unnecessarily consume a great part of the time, which should be devoted to the public service. 4. Though many long speeches would be made, about a subject, yet there would be very little discussion, because declamation is altogether unfavorable to rational investigation. No one, therefore,would ever be convinced by, or be the wiser for tiresome harangues; on the contrary, as the speeches were longer, the impressions would grow fainter and less distinct. For, it is found that the excitement occasioned by the most impassioned eloquence, lasts but a short time, and, when it has once begun to subside into languor and apathy, cannot be renewed by a mere fountain of lofty words, even though inexhaustible and though animated by the most spirited action, and uttered in a loud voice and with energetic gestures. The characteristics of eloquence itself seem to be very much changed from what they formerly were. It no longer consists of just arguments forcibly expressed, but of pointless descant, dealt out without any other limits than such as nature has set to the continuance of all bodily exertion; for, though the time of congress ought not to be valued at less than $200 or $300 per hour, yet those, who wish to be considered as eminent speakers, seldom declaim less than three or four hours; though probably there never was a speech more than half an hour long, that would not be improved by reducing it within that compass. What an ungrateful advantage then does a declaimer at irregular assemblies of the people, take of the patient admiration of his followers, when he keeps them in a state of petrifaction for a whole evening, with polished periods and rhetorical flourishes, pronounced with dignified self-complacency!

There is another mistake, that is sometimes made by the people. They are afraid to elect to office a man of superior abilities for fear he should not be honest; and prefer to him some person of correct character as far as the public knows, but of very moderate capacity, on the supposition that he will be more likely to be honest than the other, and, at any rate, will not be able to do much mischief. Experience shows, that such suppositions are frequently very incorrect. The ruling passion of men of great abilities, is ambition; that of men of small abilities who are conscious of it, is either envy or avarice. The sense of character of the former, will therefore preserve them honest, unless this quality should be in the way of their advancement. But honesty is necessarily at continual war with avarice. There is, therefore, great odds, that men of moderate abilities will sooner be dishonest, than those of great talents. For one Lord Bacon, there have been thousands of persons of moderate abilities, who have been corrupted, or, would have been, if they had been thought of sufficient consequence. It is true, that men of small abilities can do no great harm directly, and can do no great good, at all, unless, by accident; but, they may by their vote, prevent a great deal of good, and thus indirectly do much mischief. But, such persons are always a dead weight upon the public councils. If ignorant, every thing must be explained to them; if conceited, slow of apprehension, uncomplying and obstinate; nothing must be done without their seeing, knowing, attempting to understand, and expressing an insipid opinion upon it, whether they understand it or not. When envious of superior abilities in another, as is frequently the case, their sole aim is to create difficulties, in order to make themselves of consequence. In order to obtain a character for discernment, and because conscious of their ignorance and imbecility, they are full of suspicion and mistrust; and, from want of knowledge, often halt most miserably, between the extremes of credulity and incredulity; sometimes believing falsehood and ridiculous absurdities, and frequently disbelieving probability, truth, and even demonstration itself, because they cannot understand it. Their whole ability may be reduced to one single measure. They find out what others are desirous to effect, and oppose it for that reason. When they practice deceit, they use direct falsehood, and, in this way, they often succeed with persons, whom they never could have overreached by subtilty. Such is the man of moderate abilities and noiseless character, that sometimes creeps into office instead of a man of talents and experience; and, if he has an occasion, will sacrifice not his country only, but even his party, to gain his own ends.

It was remarked, that the United States seem to have their destiny in their own hands. If they would become a great nation, they must continue united. If they should separate, their importance would immediately vanish; and their jealousies and dissensions with each other, if they did not break out into border wars and predatory incursions, would render each of them comparatively weak, and little regarded with other nations; and would cause them to be less willing to assist each, and at the same time less able to stand alone. The necessity and advantage of union, will however never be able to preserve it, if injustice is practiced by the United States upon one or more of the individual states, or, what will, in the result, amount to the same thing, if the influential men in any state, with whatever views, can persuade the people of their state, that such is the case; and, it is apprehended also, that if the leading men of any state should feel satisfied, that, by seceding from the Union, they will be able to gain distinction and power among their own citizens, in consequence of supposed advantages resulting to their state from such measures, a patriotic pretext will never be wanting for that purpose.

The states are advancing so rapidly in population, wealth and power, that there is great danger that the common bond of union, the constitution of the United States, though sufficient, when the country was less flourishing, and there was more danger from foreign powers, than at present, will be found too weak to hold the states together much longer. The wise citizens, therefore, and those who have a regard for the true interests of the country, at the same time that they support the constitution, and endeavor to give it additional strength by amendments, will be very cautious of giving cause of disaffection, by attempting to increase its power by doubtful constructions. But, there is good reason to believe, that there is a faction already formed within the United States, whose aim is to separate themselves from the Union; and, if they can bring the people of the state to which they belong, to believe that the constitution is violated} and that they have a right to resist, their object so far will be obtained. To strain the powers of the constitution by a doubtful construction, is to do half of their work for them. It is true, if such is their object, they will unquestionably persist in it, though every possible cause of jealousy should be removed, and every thing that they ask, should be conceded; because any pretext, however groundless In reality, if sufficient to persuade the people of their state, will answer their purpose. Still, if, by avoiding every act that can furnish occasion for complaint, the wiser citizens among them can be induced to see, that there is no just cause for it whatever, it is hoped, they will have sufficient influence over the rest, to counterbalance that of unprincipled and designing demagogues. In this way the evil day will be postponed, and such persons will be left without any excuse or extenuation for their conduct.

Before taking leave of his readers, the author will submit one further consideration, which, though it would come with far better grace from a teacher of religion, he hopes will not be considered improper in one who is a firm believer in Christianity; since it is addressed to those only, who make the same profession.

It is remarked in substance by Bishop Atterbury, that one of the reasons of God’s interposing so remarkably in the sudden depression or advancing of kingdoms and states, is because this conduces to the manifestation of his political justice, towards public bodies and communities of men; and which is very different from that, by which he punishes the sins or rewards the virtues of private persons. The justice of his dealing with particular men may be manifested here or hereafter, as he thinks fit; for their duration is eternal, and should their successful crimes or unmerited afflictions be winked at in this world, it suffices if such irregularities are set right in another. But, as to the societies, and combinations of men, the justice of his administration towards them, must be manifested either in this world, or not at all.

If, therefore, borrowing the hint from this excellent divine, we contemplate the fall of the ancient empires, which once flourished in the highest state of splendor and magnificence, but are now almost forgotten, in connexion with the reasons assigned by the inspired writers for their destruction, and keep in mind the immutability of the divine nature, it will furnish no irrational or unphilosophical ground, to conjecture the fate of any nation, which shall transgress in a similar manner.

It is the opinion of many very worthy and conscientious persons, that, from the first settlement of this country, the Indians have had great cause of complaint against the white inhabitants; and, if there does not appear in the history of early times any particular instances of ill treatment, fraud, injustice, or imposition upon them, it is ascribed to the partiality of the historian, or his ignorance of the real causes of Indian aggressions, which, on account of the omission of their causes, sometimes appear to be wholly unprovoked and most barbarous. But, in later times, we cannot so easily shut our eyes to the light. For there is an internal evidence in certain transactions, which he must be a very inattentive observer, who cannot perceive. The United States have purchased or extinguished the Indian title to 200 millions of acres of land, for less than four millions of dollars. The lowest price which the United States demand for these lands, at the rate of $ 1,25 per acre, is 250 millions of dollars. The Indian nations are in a state of pupillage, or under guardianship to the United States, a relation which is regarded with so much suspicion by a Court of Equity, that it sets aside all purchases made by a guardian of his ward, because of the temptation the former is under, to take an unfair advantage of the latter. These treaties, however, though so advantageous to the United States, the Indians complain have not always been so scrupulously observed, on the part of the white inhabitants, as they ought to have been. Previous to the independence of the United States, the intrusions upon the Indian lands by new settlers of the most lawless character, was a frequent subject of complaint by the Indians from the year 1768 at least, when the six nations remonstrated to the commissioners of Pennsylvania, that, it would be time enough to settle their lands, when they had purchased them, &c: and, afterwards, when the Delawares and other tribes thus pathetically, but fruitlessly remonstrated with the Governor of Pennsylvania, ‘ We want to live in friendship with you: you have always told us you have laws to govern your people by; but we do not see that you have: we find your people very fond of our rich land; we do not know how soon they may come over the river Ohio and drive us from our villages; nor do we see you, brothers, take any care to stop them.’ What the conduct of the settlers was, is clearly shown by the report of the commissioners for trade and plantations, in which they remark, ‘ if the settlers are suffered to continue in the lawless state of anarchy and confusion, they will commit such abuses as cannot fail of involving us in quarrels and disputes with the Indians,’ he. There is reason to suspect, that in all the Indian wars which have taken place, from the confederacy under King Philip to the war with Black Hawk, which is just concluded, the first provocation consisted in some act of injustice, fraud, imposition or violence, perpetrated by some of the white inhabitants. But the truth will never be come at, by hearing one side only.

About the year 1771, the white settlers infringed the Indian boundary and killed several Indians, and encroached on the lands on the opposite side of the Ohio. The intruders could never be effectually removed. Governor Gage twice sent parties of soldiers to remove them from Redstone Creek, but in vain. That Indian wars should arise in this way, is not to be wondered at. But, when they do arise, it would be much more humane to send commissioners to the Indians, to demand their grievances, make them reparation and punish all who molested them, rather than to march troops against them to destroy them, right or wrong. It would also be more magnanimous in a nation containing twelve millions of people, against a few thousands, the remnant left by the evils brought on them by the whites, ardent spirits, and the small pox; to say nothing of the slaughter of them, which is frequently made a subject of boast, without much reason.

Some of the Indian tribes make grievous complaints, that their treaties are violated. Are not the bargains made with them advantageous enough, without resorting to such measures as these? They have appealed to the government of the United States,—they have appealed to the people of the United States, for redress. Shall it be in vain? Let no presumptuous confidence in the consciousness of superior power, and their comparative weakness, dictate the answer. The Amalekites, who were the first of nations, were sentenced to be utterly put out under heaven, because they attacked the Israelites when on their march, faint and weary, and slew those who were in the rear, and’ feared not God.’ Exo. ch. xvii. v. 14. Deut. ch. xxv. v. 18. If any one should answer, that the Israelites were under the immediate protection of the Deity; the reply is, that Babylon, the wonder of the world for its magnificence, was brought to utter ruin for the pride and arrogance of the people and rulers, and the oppressions which they practiced on other nations.

What was the cause of the judgments denounced against Damascus? It was, among other things, because they had threshed Gilead with threshing instruments; which is supposed by interpreters to mean, that they had greatly oppressed the Hebrews on the east of Jordan.

What was the cause of the judgment against Tyre? Was it not for cruel treatment of the Hebrews, and ‘ because they remembered not the brotherly covenant?’

What was the cause of the judgment against Edom? Was it not pitiless cruelty and unceasing revenge and hatred of the Jews?

When Saul slaughtered the Gibeonites in violation of the treaty, made with them in the time of Joshua, he committed an act highly offensive to the Supreme Being, which was followed many years afterwards, in the time of David, by the infliction of a famine for three successive years, until atonement was made. When David sinned in numbering the Israelites, there was a pestilence sent on the people from Dan to Beersheba, and seventy thousand of them died. These instances are deserving attention, because in them, it appears, the people were afflicted for the wickedness of their rulers, though they had no control over them whatever. As respects the people, therefore, in these instances, the infliction must be considered as merely natural evil, though brought on by the crimes of their rulers. But, if the people choose their own rulers, and thus sanction their measures with their approbation or tacit acquiescence, if those measures are unjust, wicked and oppressive, with how much less reason can they hope to escape, under the pretense that those measures are the acts of the government, and not the acts of the people. For, that those, who adopt the unjust act of another and screen him from punishment, are made answerable for his sins, is apparent from the narration of the Levite’s wrong mentioned in Judges, ch. xx., where it appears, that when the Israelites demanded, that the perpetrators should be delivered up, but the Benjaminites would not suffer them to he punished and took up arms to oppose the Israelites, the whole tribe was exterminated with the exception of six hundred only.

In these general visitations it must be an unwarrantable presumption to hope to escape, from a mere supposition that innocence will be a protection; since this would be to expect a miracle to take place. It is therefore made the temporal interest of every one, to endeavor to prevent injustice from being committed by his rulers; since he may suffer the infliction of natural evil, if he is entirely free from participating in the unjust act, for which the nation is punished.

If the United States therefore should commit acts of injustice and oppression upon the Indians, upon what ground can they hope to escape a visitation for it? If the rulers oppress them, or suffer any of their agents or any of the people under their government, to do so, it is national sin, and, if visited by some national calamity, what individual has a right to expect that a miracle shall be wrought to save him from it? He may be innocent or he may not be so; but when the pestilence comes, or the earthquake, or tempests, or floods, or famine, or foreign war, or civil commotions, sent as judgments upon the whole people for national transgressions, he must bear his lot, whatever it may be. For, there is no pretense, that those upon whom the tower of Siloam fell, were worse than others.* *

It is a sufficient refutation of the fatal error of those persons, who suppose they may commit wickedness with impunity in this world, by using proper precautions, and so avoiding those direct, probable, and natural consequences, which they foolishly believe are the only punishments to be expected for their flagitiousness, that those immediate consequences are rather to be considered as warnings to desist from offending, than the punishments of offenses. If these consequences are avoided, and the warning is not taken, and the offender hardens himself in the confidence of impunity, the result will infallibly show, in the language of revelation, that ‘ God is not mocked;’ and the offender will find in the result, that though for a time, he goes on in a course of unrivaled prosperity, and, from all appearances, might seem to be favored above others, yet in reality he is but adding wrath to wrath, until his iniquity is filled to the full; when he will find destruction come suddenly upon him from a quarter, whence it was least expected. Such was the fall of Hainan, and the Amalekites with him.* * *

Is it not then worth while for the people of the United States to examine, whether they have always acted justly, mercifully and humanely towards the Indian tribes; or, whether they have not directly or indirectly, by their agents, or, by not restraining lawless intruders, or, by not observing the Indian treaties, grievously oppressed them? Are the honest and worthy citizens of the United States, willing to run the risk of suffering some infliction of the divine displeasure. rather than that such violators of the public peace, should be controlled or punished?

It is true, that, while the Indians remain not wholly driven out or exterminated, it is possible, that no severe requital may be made; because, a season for a change of conduct, may perhaps be mercifully allowed. But, after the Indians are dispersed or annihilated, and there is no longer any opportunity remaining to do them justice or to make reparation for their wrongs, it is then, in the false security of worldly prosperity, that there will be most reason to dread a day of evil visitation.* *

Are there not sources enough, from whence such an evil may come, notwithstanding the present apparent prosperity of the United States, without the necessity of going out of he ordinary course of nature? This nation introduced ardent spirits and perhaps the small pox too, among the Indians. Have they not suffered by intemperance and pestilence, themselves? Is it not possible, that the same disposition, that can countenance a violation of Indian treaties, may lead to a violation of the constitution, and that the consequences of the latter may be a most awful infliction and retaliation for the former?

What then does prudence, as well as, religion, justice and humanity dictate with regard to the treatment of the Indians. Fence off the Indian territories with a wall of iron against lawless intruders. Send missionaries among them, men, who, as experience shows, may be depended on, in whatever they undertake, to instruct, and with power to protect them. If hostilities arise, instead of marching an armed force to massacre them, send commissioners with power to hear their complaints, redress their wrongs and relieve their necessities. This is all that is asked, and it will cost the United States nothing in comparison with the profit, derived from the purchases already made of the Indian territories. But, until this is done, it does not look well to speak of Russia and Poland; nor, it is believed, will a national fast be of any avail to avert any infliction, if it should be a punishment for injustice, so long as the injustice is continued.

Let not then the appeal of the Indians to the citizens of the United States be made in vain, lest they be compelled to appeal to a tribunal, from which it is believed they will not be sent away unredressed; but whatever shape it may appear in, whether war, pestilence, famine, civil commotions, or insurrection, the injured sooner or later will be avenged, and the justice of heaven vindicated.

FINIS.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
RIGHTS OF AMERICAN CITIZENS: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to agriculture
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to manufactures
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to commerce

Rights of American Citizens: The policy which ought to be pursued by the federal government in relation to manufactures

Manufacturing1The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

Continued from Rights of American Citizens: The policy which ought to be pursued by the federal government in relation to agriculture

PART III; OF THE POLICY WHICH OUGHT TO BE PURSUED BY THE GENERAL GOVERNMENT IN RELATION TO AGRICULTURE, MANUFACTURES, AND COMMERCE.

CHAPTER II; Manufactures.

In the progress of society, manufactures naturally follow agriculture. For, when society begins to advance from its rudest beginning, it is found that other things are desirable beside mere food, lodging and clothing, and, at the same time, that improvements are making in relation to these three subjects, it is discovered, that, as soon as provision is made for the necessities of nature, those of the imagination must also be provided for. A boundless field is therefore opened at once for the utmost exertion of human industry and ingenuity.

By the census of the United States, it appears that more than one fifth of the whole population is engaged in agriculture. As there is a considerable exportation of agricultural products capable of supporting human life, it is very probable that every person employed in agriculture, is able to support a considerable number of persons beside himself; it is not easy, however, nor is it necessary here to ascertain precisely how many.

If therefore a colony, consisting merely of persons whose usual occupation was to cultivate the soil, should settle in a new country, though they might have a great abundance of the immediate means of subsistence; yet they would be in want of numberless necessaries and conveniences. A blacksmith, house-Wright, mason, &c, would, therefore be an invaluable accession to their number, and, on account of the great demand for their services, such persons would have it in their power to extort almost any wages, which they thought fit to demand. It is obvious, therefore, that the business of any such mechanic, would be more profitable than that of a husbandman; because the same labor bestowed in such business, would earn many times as much agricultural produce, as it would raise, if employed in agriculture. Common sense would therefore immediately prompt the farmers to bind their sons, apprentices to such trades, until the colony contained a sufficient number of mechanics to supply all its wants.

Manufactures derive their origin from the mechanic arts. They first provide for the demands of necessity, then those of convenience, and terminate in luxury; and though it is not easy to draw the line where each begins and ends, all manufactures may be classed under these three heads.

Those manufactures, which are matters of necessity, are few, and may usually be obtained at a moderate expense, and in great abundance. But, as the demand for them is very great and uniform, the trades which produce them are deservedly great favorites with the people. Because, for the most part, they require but little skill, and every man having a healthy constitution, .and a moderate share of bodily strength, if he is industrious and temperate, is pretty sure of getting a good living by following one of them.

Those manufactures, which are matters of convenience, are more numerous. As society advances, they come to be regarded as absolutely necessary. They are greatly diversified, and the demand for them is constant; persons engaged in them easily obtain a good living, but usually, though they require more skill, they do not call for so much severe and unremitted labor as the first class. Those trades which supply such manufactures, are therefore more apt to be crowded; and the price of the product in consequence of competition, is frequently low, in comparison with the time bestowed in manufacturing it.

Manufactures for the supply of luxury, though they are the product of labor bestowed in particular trades, yet are almost infinite in variety. They are sometimes boundless in extravagance; frequently of very inconsiderable utility, or, all the real use may be supplied with articles of much less price; and sometimes are pernicious to the public, because hurtful to the health or estate of imprudent individuals. Great skill is sometimes required in the manufacture of them, and there is also a chance of failure. Their price in such cases, is very high, in comparison with the labor bestowed on them; because those which succeed must compensate, for the loss on those which fail. In some, their value and consequently their price depends upon novelty, having therefore but little intrinsic value, as soon as the fashion changes, they become worthies and cheap, though their real utility remains the same.

If a farmer should give two bushels of corn for a pair of shoes, he might be considered as acting under a species of moral necessity, because his health might be concerned in the purchase; if he should give a third of that value for a razor, he would consult his comfort or convenience; in either case, if the price was agreeable to the usual market valuation, he could not be blamed for imprudence. But, if he should give a hundred bushels of corn for a cashmere shawl, it would be useless extravagance, though the actual price in the market were twice what he gave for it. Or, if he gave a ton of carrots for a pair of ear-rings, or for any fashionable article, which in six months time would be out of fashion, and would not bring one half of the price which he gave, though its real value was not at all diminished, he would commit an act of expensive vanity.

If all the lands in any community were distributed among husbandmen, and cultivated by them to the highest degree, and all the necessaries and conveniences of life, beside what they raised by their own labor, were furnished them by mechanics and manufacturers, before the introduction of the inventions and discoveries of luxury, it is plain, that independently of foreign commerce, such community might attain to a great height in the number of its population, all of whom might be as comfortably situated, as the reasonable satisfaction of moderate wishes would require. For, as all the farmers would equally have occasion for the products and labor of manufacturers and mechanics, these classes would receive in exchange from the farmers, so much of their produce, as their own labor would have produced, if employed in agriculture. Because, agreeably to the general rule, the demand would regulate the supply; and the number of apprentices bound to a trade, would depend upon their prospect of earning a good living, when they should become master workmen.

But, as soon as society advanced one step further, it would be discovered, that agriculture could support within the country a greater number of persons, than could find employment within it, taking all the various occupations of agriculture and manufacturers together. For, not many more persons would engage in agriculture, than would be sufficient to supply the whole community with agricultural produce. And, as it would by no means take all the rest of the people, to supply the whole community with every species of necessary convenience, or even domestic luxury, that might be called for; it would immediately become necessary to find some means of employing the supernumeraries, so as to enable them to support themselves; since otherwise they would become a burden upon the rest of the community. And it would soon be perceived, that this could be done effectually, and perhaps without changing the nature of their usual employments, by finding another market for the products of their labor. As the home market would already be taken up, another market for the surplus of home production, must therefore be looked for, abroad. This would introduce foreign trade and navigation. For, the manufacturer by means of the merchant, and with the use of shipping, would send abroad all the surplus produce of his labor beyond what was called for to supply the market at home; and receiving his returns from abroad either in money or in some foreign article of luxury or variety, which he could not obtain at home, and exchanging it in whole or in part for the necessaries or conveniences of life, would thus be enabled to get as good a living as his neighbors. By the introduction of the various employments of commerce and navigation, the means of obtaining a good living, would also be furnished to another numerous class of people, who would be supported by and consequently would furnish a market for a large amount of agricultural produce. Thus the various classes of society would mutually assist, and at the same time, balance each other. The exigences of society however would introduce various other classes of persons, whose occupations and employments are of the highest necessity and utility, such as the makers, expounders, and ministers of the laws, the members of the various professions, teachers of youth, &c. &c., all of which, so far as political economy is concerned, must be considered in the inoffensive and strict sense of the term, as parasitical. For, these classes derive their existence merely from the use they are of to society, to prevent or remove evils, inconveniences and disadvantages, which otherwise it must necessarily suffer. This is obvious; because if the people were peaceable and just in all their dealings, there would be but little necessity for rulers, legislators, &c. &c. If they were always in health, there would be no occasion for physicians, surgeons and apothecaries. If knowledge were either intuitive, or were unnecessary, there would be no occasion for teachers of youth, &c.

As the manufactures, which are necessary to supply the home market, employ a great many persons who consume a large proportion of agricultural produce, the interests of agriculture and manufactures are intimately connected; they are reciprocally advantageous; and whatever encourages or discourages either, for the most part affects the other in a similar manner.

So long as the necessaries of life raised by the husbandman, are exchanged for home manufactures, even though they should be merely articles of luxury, if not absolutely pernicious, there will hardly be any subject for legislative interference; because, those necessaries being consumed within the territory, the country will always sustain as great a population, as its actual production will enable it to do at the time. No check will therefore be offered to the increase of its population. And even although the consideration, which the husbandman should receive from the manufacturer, should be nothing more valuable than trinkets and baubles of his manufacture, the interests of the country will not be directly concerned in it. For, the whole amount of property in the community will remain the same as before, notwithstanding such exchange; there being no difference, except that the manufacturer has supplied his occasions with agricultural produce, and the husbandman has gratified his vanity with the possession of finery of little value. The tendency of such a barter, however, is very injurious. For, as soon as it is discovered, that more of the necessaries of life can be earned by a little easy labor, bestowed in manufacturing articles of such inconsiderable value, than by a great deal of hard labor employed in tilling the ground, there will be too many apprentices bound to learn the trade of manufacturing such articles, and agriculture will be less followed. The evil may, or may not, cure itself. Agricultural produce without doubt, would rise; and when the country was once deluged with such baubles, their price would probably fall, to conform to their real value; but invention is infinite, and for aught that appears, there might be new patterns and new fashions in perpetual succession forever, to the great impoverishment of the agricultural class and consumers generally.

But, as society is at present constituted, it seems impossible for the legislative power to interpose, without infringing what the citizens consider their reserved rights. For, they would hardly consent, that they should be deprived of the privilege of consulting their inclinations in the purchase of any articles, however useless, extravagant, or even pernicious, by the operation of sumptuary laws. Such matters, therefore, must be left to the discretion of each individual, being, matters of private economy.

But, it is quite clear, that, while the manufacture of articles of real utility, should meet with every encouragement that the legislative power of the country has a right to bestowj sound policy requires that any manufactures of the nature just referred to, should receive no encouragement, for the plain reason, that they consume the means of subsistence for a class of manufacturers of greater utility. But, when all the useful and necessary occupations in society are filled with tradesmen, artists and manufacturers, no objection ought to be made to the setting up of any such manufactures, or any of the various fine or ornamental arts. Because to check or prohibit these, is to stop the advance of society in civilization and refinement; and is to require, that wealth, which is the proper reward of skill and industry, should forego those innocent and proper indulgences, which furnish the strongest motive for its accumulation. And the fine arts, though they make no pretensions to be the foundations of society nor add any thing to its strength, still must be considered as contributing greatly to its felicity, and constituting the most brilliant gems that adorn its crown. Another principal reason, however, why encouragement should not be held out to them, in the first instance, is, that, out of the number of aspirants to distinction among them, a comparatively small number meet with any considerable success; for, as in them anything short of excellence, is but little regarded; and, as excellence is always comparative, a few only can be rewarded with a prize, which, though an ample one, is always bestowed at the expense of the unsuccessful competitors, who in consequence, frequently languish in indigence and obscurity.

Manufactures, which convert the necessaries of life into an article incapable of sustaining it, and, which being of but little use at best, in fact, sometimes, become the ruin of numberless people from the temptations to excess which they offer, should be wholly abolished. Because they check population, by wasting food capable of sustaining life; destroy health; lessen industry; and introduce directly or indirectly every species of vice.

As some of the United States possess great natural advantages for the establishment and carrying on of manufactures; but others are less favorably situated for this purpose, the following questions, being subjects of general interest, naturally present themselves for consideration.

1. Is it advantageous to the interests of any manufacturing state, that foreign goods, which come into competition with its manufactures, should be either partially or wholly, excluded from its market, by protecting or prohibitory duties?

2. Is it disadvantageous to the interests of any non-manufacturing state, that foreign manufactures usually consumed within it, and of a similar kind to goods manufactured in some of the other states, should be either partially or wholly excluded from its market, by protecting or prohibitory duties?

3. Is it, on the whole, a national advantage to the United States, that duties should be laid on foreign goods, of a similar kind with goods manufactured in some of the states, for the purpose of securing either a monopoly, or equal competition for the products of the industry of the manufacturing states, against those of foreign industry?

4. Has the congress of the United States any authority under the federal constitution, either to prohibit, or to impose duties upon the importation of foreign goods, for the sole purpose of securing the whole market of the United States, to the products of the industry of the manufacturing states, and, when there is no constitutional call for the expenditure of the money to be raised by the collection of those duties?

It may be remarked, that, though a state which has manufactures largely established within it, is here called a manufacturing state, it is by no means so called because those manufacturing interests are paramount to all the other interests in such state; for, it is believed, that there is hardly a state in the Union, in which there is not some interest within it, either of agriculture or commerce, paramount to that of manufactures. But this epithet is bestowed on it here, merely to distinguish such states, from those which have not introduced manufactures among them. It would be a great error in politics, therefore, to wish to introduce any regulations into a state for the encouragement of its manufactures, without previously considering how such regulations consist with the interests of the state at large, that is, the interests of the rest of the inhabitants. Laying this foundation, it may be answered,

1. With regard to the first question; the direct consequence of a prohibition of foreign manufactures, is to raise the price of domestic ones of the same kind and quality. This price will then depend upon the proportion between the demand and the supply. If the supply is not equal to the demand, the price will rise very high, and the manufacturers will realize a great profit, but the rest of society will be put to great expense and inconvenience in furnishing themselves with goods, which they will be compelled to do at such prices, as the manufacturers think fit to demand. The tendency of high prices will be to encourage smuggling. Affairs, however, will not remain long in this state. As soon as it is discovered, that manufacturers derive great profits from their business, so many will embark in it, that the market will be abundantly supplied with goods, which will therefore fall in price; and notwithstanding the goods of foreign manufacture are excluded, and the monopoly of the home market is secured to the domestic manufacturers, their competition with each other will soon render their prices as moderate, as they are in all other kinds of business; that is, as low as they can sell them and make a reasonable profit, in proportion to the profits of othef kinds of business. It is very clear, therefore, that the manufacturers, as individuals, will derive no permanent gain from a prohibition of foreign goods, which will give them an advantage over persons engaged in other occupations; though, if such prohibition should once be made, and any persons should enter largely into manufactures, under an opinion that it would be continued, they might very probably be ruined, if the prohibition should then be unexpectedly withdrawn.

It must not be overlooked, that, if the price of labor, in any country from which the importation is prohibited, is so much lower than it is here, that the foreign manufacturer, if he could have a chance to introduce his goods into this country, would, notwithstanding freight, insurance, and other charges, be able to realize a profit by selling them at a price lower than our manufacturers could afford, the competition of domestic manufacturers, will never of itself compensate to the consumers in the home market, for the high prices which, it is obvious, they will be obliged to pay, when the prohibition is first made. The reason is, the home manufacturer cannot afford to sell his goods for less than they cost him. But^ as they cost the foreign manufacturer less than they cost our manufacturers, he can afford to sell them for less. The support of manufactures, therefore, under such circumstances, will always, in this respect, be a tax on the consumers of the goods in this country; which tax will amount precisely to the difference between the price of a home-made article, and that which a foreign one would cost here, if it were not prohibited.

There are several circumstances, however, which, though indirectly and circuitously, would overbalance this disadvantage to the state at large; ]. By prohibiting foreign manufactures, an opening would be made for a very extensive business, capable of affording as good a living as any Other in society. On the supposition that its market was confined to this country, still, it is obvious, that the supply of the home market must employ a considerable number of persons. The population of the state would therefore, sooner or later, be increased by the number of persons, who, in consequence of the prohibition, would engage themselves in manufactures. For, it is admitted in political economy, that the number of the people soon increases or decreases, so as to have a correspondence with the means of earning a subsistence.

2. The market for the supply of these manufacturers, would be secured to the producers in this country. This would increase the demand for agricultural produce; and, it is very probable, that the farmer, who, perhaps, before the prohibition, when the market for the sale of his own produce was dull, might purchase foreign goods at a cheap price; afterwards, when the prohibition was laid, and the market for the sale of his produce had become high, might better afford to give a considerably dearer price for domestic goods.

3. By purchasing foreign goods, our own country would contribute to support the manufacturers of that country from which they come. The number of manufacturers, who are supported abroad by the profits which they derive from the sale of their goods here, is the same that -we should support at home, if foreign goods were prohibited. But, if the manufacturers are supported here, they increase the number of our own population, and bear their proportion of the general burdens, and add to the effective force and respectability of the nation.

The effect of protecting duties, would, in some respects, be similar to that of a prohibition; because it would bring domestic manufactures into the home market, on the footing of competition, and would furnish a check to those of foreign fabric. It, of course, would be less advantageous to the interests of domestic manufactures, than a prohibition; because, the latter would secure to them the exclusive possession of the home market, which the former would be unable to do. The competition, however, would be more favorable to all oonsumers of foreign goods ; because they would have it in their power to purchase them at a cheaper rate, than they could do under the monopoly occasioned by a prohibition.

It would also be more advantageous in some respects to the government, to lay an impost, rather than a prohibition. Because, if the impost were adapted to the circumstances of the foreign manufacturer, he would be compelled to pay the whole of it. For, the market in this country would be profitable enough to him, to induce him to send his surplus, which otherwise would perish on his hands; but, in order to sell it, the price must be reduced so low, as to compensate to the consumer for the amount of the duty. So much of the revenue must, therefore, be paid by the foreign manufacturer, and he will find it for his interest to do it for that part of his produce, for which he can find no other market.

In illustration, let a case be supposed. If a farmer, when home-made shoes are worth two bushels of corn a pair, can buy a pair of foreign made shoes of equal quality for one bushel of corn, it is not to be doubted that he will buy the foreign shoes; and if all the other consumers in the state act on the same principle, the shoemakers, finding, that they cannot get enough for their labor at the same price, to enable them to live, will leave the business, or, it will be so bad that no more apprentices will be bound to it; so that finally it will be discontinued. The state will then support its shoemakers in a foreign country. And the means of subsistence being sent abroad, the state will not be able to support so many people, by that number. If the shoemakers discontinue their regular business, they will be distributed among the other classes in society. It is worthy of remark here, that, by carrying on any other business in any such case, they will be able by the wages of their labor, to purchase a greater number of shoes, than they could have manufactured at their regular business. For, when shoemakers, suppose they manufactured 10,000 pair of shoes, equal to 20,000 bushels of corn raised by an equnl number of farmers; then, becoming farmers, they produce 20,000 bushels of corn; 10,000 bushels of which will give them 10,000 pairs of shoes ; and then they will have 10,000 bushels of corn left. If then a shoemaker could buy a pair of shoes, supposing them equally good with what he produces by six hours labor in the field; would he be willing to work twelve hours equally hard in his shop, in order to make them?

Under these circumstances, if a duty should be laid of fifty per cent, it would tend to lessen the price, which the foreign manufacturer would expect to receive for his shoes; because it would lessen the demand for them, by introducing competition into the market. The domestic manufacturer would then be able to live; but all consumers would be compelled to pay a higher price for shoes, by the difference between the price of foreign shoes before the duty was laid, and the price afterwards.

But, it must be remarked, here, that if we have no manufactures among us, foreigners, knowing that we must have a supply from some quarter or other, will have it in their power to compel us to receive goods of whatever quality, and at whatever price, they please.

Suppose then our shoemakers have abandoned their business, and left the market to foreigners, what will the consequence be? Shoes of the worst quality will immediately be sent here, and if we are not compelled to pay a higher price for them, than we refused to pay our own shoemakers, we may think ourselves fortunate. In all such cases, therefore, we must choose between the two evils ; and, if we wish to have manufacturers among us, we must lay such a duty on foreign goods, as will enable our own, to meet them fairly in our own market. But, we must not take off such a duty on the vain supposition, that goods will remain permanently cheaper; for, as soon as we have broken up our own manufacturers, we shall, in this respect, immediately become at the mercy of foreigners. , .

2. Is it disadvantageous to the interests of any non-manufacturing state, that foreign manufactures usually consumed within it, and of a similar kind to goods manufactuied in some of the other states, should be either wholly or partially excluded from it, by the operation of protecting or prohibitory duties?

Manufacturing2An absolute prohibition of foreign goods, would seem ‘to compel the non-manufacturing state to purchase such articles as it needed, even though inferior in quality to the foreign ones, at whatever price, the home manufacturer saw fit to demand. There would be two checks, however, to any exhorbitant increase of price. 1. The manufacturers having principally to depend upon the market of the United States, would be under as great a necessity to sell, as the consumers would be to purchase. 2. The competition among the manufacturers themselves, which, on account of their increase of numbers, would be continually growing greater, would keep the prices of their goods down, to an average with the products of other kinds of labor.

But there would remain two disadvantages. 1. As long as the price of labor and of subsistence, are so much lower in a foreign country than here, as to outweigh the freight, insurance, &c. for transporting foreign goods to this country, the foreign manufacturer will always be able to undersell ours in our own market, if not protected by a duty. Consequently, if the foreign goods should be excluded, no competition among the home manufacturers, will ever reduce their goods to as low a price, as those of foreign goods would be, if there were no duty.

2. If foreign goods are prohibited, the nonmanufacturing state will suffer a loss by the prohibition, precisely equal to the difference in price, between what the same goods could be bought for before the prohibition, and what must be given for them afterwards. The consequence of this loss, will be that the non-manufacturing state will not be able to sustain as great a population by so many persons, as that difference would support. For example, let it be supposed, that the non-manufacturing state before the prohibition paid $50,000 per annum for foreign goods, and afterwards paid for similar goods, to a manufacturing state $60,000; then it is plain, that so many persons as derive their subsistence from the difference, viz.; $ 10,000 per annum, are gained by the manufacturing state, and lost by the non-manufacturing state. This is evident, because, whatever tends to increase the consumption of a state, without tending also to increase the population, not only checks population, but diminishes the capability of the state, so long as the cause exists.

To counterbalance these disadvantages, there are some circumstances which deserve consideration. 1. The increase of population in the manufacturing state, will increase the home trade between the two states, not only in relation to the sale and purchase of the particular goods of the manufacturing state, but, in all articles which may be received in barter for them; in this way, it is not unlikely, that the manufacturing state may be the customer of the non-manufacturing state, to an amount equal to the price of the manufactures.

This compensation would be much more complete and direct, if the raw material used by the manufacturing state were the -growth of the other, and was bartered for the manufactured goods. But, on the other hand, if the non-manufacturing state were compelled by the prohibition to purchase goods of a manufacturing state, which either could not or would not purchase the raw material in return, it would operate very injuriously to its interests. Because, 1. The non-manufacturing state would more or less lose its market for its raw material with the foreign manufacturer, in consequence of not buying of him;

2. Would be compelled to pay to the manufacturing state a higher price in money, for whatever goods it purchased.

3. Its raw material would fall in price on account of the difficulty of rinding a market for it. Under these circumstances, a prohibition would be entirely to the advantage of the manufacturing state, and to the disadvantage of the other.

The effect, which duties imposed on articles of foreign manufacture, for the purpose of protecting the manufacture of similar goods in a manufacturing state, would have on the interests of a non-manufacturing state, must be analogous to a prohibition. Some consequences, however, would be more favorable in the latter. 1. Though the protecting duty would naturally tend to raise the price of the manufactures to the consumer; yet, it would by no means have so great an effect, in this respect, as a prohibition. The rise probably would not be so great as the whole amount of the duty. For, by encouraging the domestic manufactures of another state, though by the supposition, it would not wholly expel the foreign manufacture, yet a competitor would be introduced into the market, who would lessen the sales of the foreign article. The diminution of the sale, would, for a time, at least be accompanied with an accumulation of the foreign goods. It is very possible, that this might become so great, as to compel a sacrifice at a price below the usual one before the duty was laid. The duty of course would cease to be a protection for a season. For, large sales of foreign goods, would bring down the price of the manufactures intended to be protected, so low, that they could not be manufactured and sold in their own state and, with greater reason, could not pay for freight &c. to the non-manufacturing state, with any reasonable expectation of profit. This effect, however, would be only temporary. The foreign manufacturer, or merchant, after so great a sacrifice, would send fewer goods; and fewer would be ordered from this country. It is very possible, however, that any person, not knowing the nature of the cause of the disturbance of the market, might suppose it to be permanent, and conclude that the various manufacturing establishments would be ruined, unless heavier duties were imposed.

2. During this struggle for the market, the consumers in the non-manufacturing state, would enjoy the advantage of purchasing goods at extremely low prices. The public revenue also would he levying a heavy contribution, which would fall either on the merchant, in whose hands they happened to be at the time of the pressure, or else on the foreign manufacturer, but not on the consumer, as some imagine. It is true, when foreign goods, subject to duty, are imported in the regular course of trade, the duty is added to the cost of production and the freight, &c, and the whole constitutes the price, all of which in ordinary cases is paid by the consumer, and the duty goes to the government. But, where the duty is laid to protect a domestic manufacture, the foreign manufacturer is obliged to reduce his price, to the importer, as much as possible; otherwise the protecting duty will drive him from the market as effectually as a prohibition would do. This reduction of price goes to pay the duty, and, in case of a glut of the market arising in the manner before suggested, may amount to more than the whole duty. The cheapness of the price in this case, notwithstanding the duty, clearly shows that the duty is in effect paid by the foreign manufacturer. But, as the foreign manufacturer, in consequence of his loss, or the low price of his goods, arising from the accumulation of them, would afterwards receive orders for fewer goods ; the price of such articles, whether manufactured abroad or at home, would soon rise again in the market of the non-manufacturing state, until they settled at that price, at which the home manufacturer could afford to sell them and make an average profit with other kinds of business. To this price the foreign manufacturer must cofnorm, or otherwise his goods must leave the market. Whether such a protecting duty would or would not be a disadvantage on the whole to a non-manufacturing state, no infallible criterion appears, applicable to all cases. It must depend in every case upon the balance of the various advantages and disadvantages necessarily involved in it. In some cases, there can be no doubt. For instance, if the effect of a protecting duty is to create a permanent rise in the price of the manufactured articles, in comparison with the products of the non-manufacturing state, which either directly or indirectly must pay for them, it would be a disadvantage equal to the difference of price; because it would be a proportionate check to an increase of population. But, though the price in money should be raised, it does not follow, from, this circumstance alone, that the protecting duty must necessarily be disadvantageous to the non-manufacturing state; beeause the produce of such state may also have risen in price, in proportion.

So, if the non-manufacturing state, in consequence of the protecting duty, should be placed in a dilemma, where it either must lose the market for its raw material, with the foreign manufacturer, by purchasing of the manufacturing state which does not purchase the raw material in return; or, otherwise must pay an increased price for the foreign articles, in order to sell its raw material to the foreign manufacturer, the protecting duty will be proportionally injurious to the non-manufacturing state.

3. Is it, on the whole a national advantage to the United States, that duties should be laid on foreign goods of a similar kind with goods manufactured in some of the states, for the purpose of securing either a monopoly, or equal competition for the products of the industry of the manufacturing states, against those of foreign industry?

A few remarks have already been made, to show that the encouragement of manufactures by a protecting duty, is advantageous not only to the manufacturers themselves, but, independently of their particular interest, to the whole of a manufacturing state; it has also been shown that, in some cases, the imposition of such a duty is injurious to a non-manufacturing state; that where it is not so, it is because incidental circumstances sometimes afford an indirect compensation; the disadvantage however, where it exists, is direct and obvious j but the effect of the compensating circumstances, can seldom be clearly shown.

It is apparent here, that the determination of the present question, must depend upon a comparison of the advantages, which the encouragement of manufactures affords the manufacturing states, and the disadvantages which they will suffer, if protection is withheld, with the injurious effects that the imposition of protecting duties, &c. will have on the non-manufacturing states, and the advantages which they will derive from a free trade in these respects, if the duties are taken off. The difficult task, however, of striking a balance between present and actual advantages and disadvantages, and those which are future and contingent, will not be attempted here; because, it is believed a proper answer to the next question, will render a further consideration of the present one, wholly unnecessary. It is an ancient saying, that, consilium non est eorum qua fieri nequeunt, which, for the present purpose, may be rendered, that it is useless to consider the expediency of measures, which we have no right to adopt; , it is hoped, that the government of the United States will always consider the want of right as the same with the want of power, in relation to this and every other subject.

4. Has the congress of the United States any authority under the Federal Constitution, either to prohibit, or, to impose duties upon the importation of foreign goods, for»the sole purpose of securing the. whole market of the United States, to the products of the industry of the manufacturing states, when there is no constitutional call for the expenditure of the money, to be raised by the collection of those duties?

Some observations on this subject have already been made, in commenting on the constitutional powers of congress. See ante, p. 99 to 109. But, as the committee of congress on manufactures, have expressed a decided opinion, that the power in question is bestowed on congress by the constitution, a few further remarks are here submitted to the discerning reader, for the purpose of noticing the grounds on which such opinion is placed.

The chairman of the committee, in his letter to the speaker of the house of representatives, says that Mr. Madison entertains the opinion, ‘that the power of congress to protect domestic, by taxation upon foreign industry, is implied in the power to regulate commerce,’ and expresses his assent to the doctrine. He adds, that it is also contained in the grant of power of taxing ‘ to provide for the common defence and general welfare.” But, in the opinion of the supreme court of the United States, the power to regulate commerce, does not comprehend the power to lay duties or imposts on exports or imports. See 9 Wheat. 209. Yet, it is in this connexion, that one would naturally have expected to find such power expressed, if it had been granted in direct terms in the constitution; and, if not contained here, it would very naturally be supposed, that it was not intended to grant it at all. It may be remarked, that though the chairman agrees with Mr. Madison, in thinking the power is implied in that of regulating commerce; yet, it by no means appears, that Mr. Madison agrees with the chairman, in believing that such protecting power is contained in the power to tax, ‘ to provide for the common defence and general welfare.’ The circumstance, that this power may equally be inferred from two several grants, made in different places in the constitution, of very different powers, shows clearly, that there is no necessary inference of any such power in either grant.

Manufacturing3The importance of this power in the hands of congress, to the interests of the manufacturing states, and perhaps also to the interests of the United States, considered as one great nation, would naturally create a wish in the minds of statesmen, that the states had agreed to confer it on congress, by the national compact; in others, the necessity for it seems to have furnished the only ground for a belief, that it is actually granted; in others, there seems to exist a pre-determination to find such power granted in the constitution, and the only question with such, is, under what clause or article it is contained, or under what general expression, will it be best to consider it comprehended. Any such previous bias, or predetermination, however, is not at all favorable to an impartial examination of the question, whether it really is contained in the constitution or not.

The power in question, it is pretty clear, if it exists at all, is an implied one. But, if valid as an implied power; then according to the general rule, it must be absolutely necessary to the exercise of some power expressly given. If it is thus necessary to any express power, what is that express power?

If it should be answered, that it is necessary to the exercise of the express power of providing for the common defence and general welfare; the reply is, lhat a power to provide for the common defence and general welfare, is not given to congress in express terms in any part of the constitution. If such power had been given in express terms, there would have been no necessity of enumerating particularly in the constitution, the Various powers intended to be bestowed on congress; for, congress might then have done whatever they considered for the general welfare, provided they did no act which is expressly prohibited in the constitution. A power to provide for the general welfare, which would comp;ehend, with ?. few exceptions, an unlimited grant of power, is not granted in it at all, in express terms; but, to provide for the general welfare, is the pvrpose for which, and for which alone all the powers were granted. It is not a power of itself, however, a’nd consequently does not alone authorize any act, which does not result from the exercise of some other power, either given in express terms, or necessary to the exercise of some power, which is given in express terms. Instead of being an independent, unlimited power of itself, it is rather a restraint upon all the express and implied powers contained in the constitution; since it would be unconstitutional to exercise any of those powers for any purpose, that does not in some way contribute to the general welfare.

If it should be said, that this protecting power is contained in, or is part of the express power to impose duties for the purpose of providing for the general welfare; the reply is, that no one can well entertain this opinion, who considers it an implied power. There is an apparent incongruity in supposing an implied power to be either contained in, or to be part of an express power; agreeably to the maxim, expressum facit cessare taciturn; the purport of which is, that where the intention is express, there is no room for implication. That it is not an express power, and is not granted in effect, is apparent from what must then be the necessary consequences. 1. For, congress would then have a right to impose a tax for any purp ose which they think will conduce to the general welfare, provided such purpose is not expressly forbidden in the constitution; which would enable congress to do what they pleased, if not thus expressly prohibited. For, we cannot suppose, that congress have a constitutional power to impose a tax for the purpose of doing an act, to do which would be an infringement of the constitution.

Can it be said, that under the power, ‘to impose taxes in order to provide for the common defence and general welfare,’ congress has a power to impose duties, in order to promote the sale of domestic manufactures by the partial exclusion of foreign ones, because such encouragement to domestic manufactures is one of the means of providing for the common defence and general welfare? It is true, the chairman puts it on the ground, that defence in the constitution, means ‘ defence against every danger, and every foe;—defence against all hostility and from every evil which may bear on the whole community and menace the general welfare,’ &c. But dangers and foes, which are so merely in a figurative sense, it is supposed, are not intended by the constitution; otherwise an inconvenient and ludicrous latitude of interpretation must follow. In fact, at the time of framing the constitution, the nation had just emerged from the dangers and troubles of a long and cruel war, in which the national existence was at hazard, from the greatness of the invading force of the enemy,—their fleets and armies. The articles of confederation had been found inadequate to the various emergencies which had taken place, among other respects, because it did not bestow a power of direct taxation. In forming the constitution, the states therefore agreed that congress might impose taxes for the purpose of providing ‘for the common defence;’ i. e. by expending the money during hostilities, in fortifications, in ships, in armies, &c. &c. But it is not believed, that in using the expression, common defence it ever occurred to the states, that they were bestowing on congress the power of taxing foreign goods, for the purpose of encouraging home manufactures. For, what is the common defence in this case? It is nothing more than compelling our own citizens to buy home-made articles, by raising the price of foreign ones in our market. And, who are the enemies, against whom we are to defend ourselves in a time of profound peace? Our own merchants, who, in consequence of the rise of foreign goods, will be less inclined to order them. And how is the common defence to be provided for, and the general welfare to be consulted? By making the rest of the people, who are twenty to one of the manufacturers, pay a greater price for their goods, in order to encourage these last in their business. For, no one will pretend, that the exclusion of foreign goods, is for any other purpose than to encourage home manufactures. It is very figurative language indeed, to call this, common defence and general welfare; but, if it be proper to use it on popular occasions, it by no means follows, that it may be assumed as the basis of legislative measures and proceedings.

But, if the states intended, by these expressions in the constitution, to grant this power to congress, then section 8 of the first article, which specifies many powers of the highest importance to the public defence and general welfare, is wholly useless and superfluous. The power to coin money, to establish post offices, to fix the standard of weights and measures, &c. are given in direct terms; so, the power to raise armies; to maintain a navy; to provide for calling forth the militia, &c. are all expressly given to congress. Are not these necessary to the common defence and general welfare? Now, is this power of taxation for the sake of giving the monopoly of the home market to our own manufactures, of so much more necessity than these powers, that it shall be considered as granted, though not named, and though it was thought necessary to name these?

Further; if, under the power to impose taxes to provide for the common defence and general welfare, congress have not a power to do every act not expressly prohibited in the constitution, which they may think necessary to the common defence, &c., then, for the same reason, they have no right to impose a duty on foreign manufactures, for the sole purpose of encouraging domestic manufactures. There can be no mediurn, and the chairman expressly disclaims any such indefinite grant of power. See his letter to the Speaker of the House of Representatives. His conclusion, therefore does not follow. For, how can a power to impose a duty for such a purpose, be contained in, or inferred from a power to impose taxes for the common defence, &c., unless congress have a power to lay taxes for all purposes, which they judge necessary, to the common defence, &c. and which are not expressly forbidden in the constitution?

In the report of the committee on manufactures, it is further urged, that the first act of the first congress organized under the constitution, was to pass a law, containing the following preamble; ‘Whereas it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, that duties be laid on goods, wares and merchandizes imported;’ and the argument is, that it is impossible to deny the power of congress to levy duties for the protection of domestic manufactures, without pronouncing this act to be unconstitutional. But the conclusion does not follow; for, allowing this act to have all the authority of a precedent, though American manufactures at that time were of comparatively small account, and it does not appear, that the present subject was considered at all, at that time; two circumstances which wholly take away its authority as a precedent; still, it can have no authority, except when the country is under similar circumstances. This act was passed, while the United States were laboring under a heavy public debt, which could be discharged in no other way but by a tax on the people, to be levied in some mode or other. This constitutional ground, for the imposition of the tax, together with that of the necessary support of government was therefore laid in the first part of the preamble; and, in what follows, it appears congress was governed by considerations of sound policy, to lay the duties on imported goods; because such duties, whether similar articles were then manufactured in the country or not, would offer a proportionate inducement or encouragement, to enterprising persons to undertake, or to carry on manufactures; and it is very possible, that the words in italic were introduced, in order to lessen the unpopularity, which invariably attends an act laying a tax, by holding out to the people the hope of deriving some advantage from a source, whence they expected only to feel a burthen. For, in any other view, the words in italic are wholly superfluous; since the law is constitutional without them.

But, this supposition is by no means necessary, as the public debt contains a sufficient ground for the tax; and political expediency is the reason for imposing it on foreign goods imported. The precedent therefore loses its authority for the purpose, for which it is adduced. For, it does not follow, because congress, when the United States are in debt, has authority to lay a duty, which, for the encouragement of domestic manufactures, is imposed on foreign manufactures, that congress has authority to impose a duty on foreign goods, when the United States are not in debt, for the mere purpose of encouraging domestic manufactures. Besides, it ought to appear, that congress would never have inserted the words in italic, unless they had believed, that they had authority to impose taxes for the sole purpose of encouraging domestic manufactures. Less than this will not answer, because it will be irrelevant to the present inquiry; and this does not appear at all.

Further; why did not congress in this act, make use of the language of the constitution, to express the ground of the exercise of their constitutional authority, if they did not think the payment of the public debt sufficient? If the encouragement of domestic manufactures is a sufficient ground, and is couched under the words, ‘to provide for the common defence and general welfare,’ why was not this constitutional language used? But it was not used; it is plain, therefore, that the payment of the public debt, &c. was considered sufficient without it, and the encouragement of manufactures, was inserted as a matter of policy.

Lastly ; if congress, under the power to provide for the general welfare, have the power thus to impose duties on foreign manufactures, still there will be no room for the exercise of it, unless the object is of a general nature. If the object, instead of consulting the general welfare, is absolutely injurious to the interests of one or more of the states, though highly advantageous to the rest, it will afford no pretext for the exercise of such power. By the general welfare, here, is not meant the interest of a majority merely of the states, to which they may sacrifice the interests of the rest; but, it should embrace the interests of a majority of each of the states. For, twenty-three of the states may possibly think it would contribute to their general welfare, to partition the twenty-fourth among them. But this is not such a general interest, as is intended in the constitution, which, though it may extend so far as to authorize a law which being favorable to all, is more so to some than to others, could never have been intended by the framers, to justify a sacrifice of one, for the advantage of the rest.

The inference seems to be, that so long as the country is in debt, it is both constitutional, and good policy,, to tax foreign manufactures; but, as soon as the country is free of debt, and there is no constitutional call for the expenditure of the money, to be raised by an impost on foreign goods, such impost cannot be laid for the sole purpose of protecting or encouraging domestic manufactures, without overstepping the limits of the constitutional authority of congress.

Note. A few desultory remarks, which could not well be interwoven in the text without interrupting the train of reasoning, are here subjoined; and, in order to place two different views of the same subject, in stronger contrast, they are introduced in the form of a conference between a manufacturing and a non-manufacturing state.

Manufacturing State. Why do you oppose the tariff?

Non-Manufacturing State. Because I can never assent to a law, which compels me to pay a higher price for goods imported, when the revenue, arising from the duty imposed by it, is not wanted for any constitutional purpose.

Man. State. Why then will you not buy your goods of roe?

Non-Man. State. Because, if I should buy of you, importation will cease. You will then have the monopoly of my market, and I must be more or less at your mercy as to the price of your goods. But, I ask in return, why do you wish to have the duties continued?

Man. State. Because of the great benefit I derive from the law, and the immense advantage, it is or will be, to the prosperity of the United States, in the protection of American industry.

Non-Man. State. Call it, if you please, the protection of a particular portion of American industry, for which protection, the other, and I believe much the largest portion of American industry, is compelled to pay, in the shape of higher prices for the goods they want. The number of persons in the United States, engaged in manufactures, probably does not exceed a half million, out of twelve or thirteen millions, the rest of whom probably are as industrious as the manufacturers. Our state is engaged in agriculture and commerce, and the inhabitants are as industrious as they choose to be, and follow whatever calling they please, which, I take it, is all that any one has to do with the subject. But, waiving that; the tariff occasions a loss to me, equal to the additional price, which I am obliged to give for goods subject to the duty. This tariff was imposed at your request, and you derive all the benefit of it, while I suffer all the loss. Why then, if you wish it to be continued, and are actuated by motives of justice, will you not allow me, out of the great profits you derive from the tariff, the amount of duties, collected in the ports of our state, on the foreign goods subject to them?

Man. State. It is impossible you can be serious; all the profits, which I derive from the sale of a quantity of goods equal to those which pay duties in your state, I presume would pay but a small part of those duties. If this was required, all my manufacturers would be ruined. But you mistake the matter greatly. Look at the price of our stock; it is not so very much better, than other stock in general. We sell our goods as cheap as we can afford.

Non-Man. State. It is pretty clear, then, that though my loss by the tariff is great, yet your gain by it is small. For, if you get ten or even five per cent, more by manufacturing, than you could do in other business, you consider yourself as doing well. Now, on all goods, the price of which is raised by the tariff, my loss is the rise in price. For, if the goods are raised thirty per cent, then I can get no more goods for 130 bales of cotton, than I could for 100, if there were no tariff. Then I must lose thirty per cent, on my exports, in order that you may get five or ten per cent, more on your labor and capital, than you can do in other business. For, I presume you would not carry on manufactures unless you made some profit. Why then is your interest so much to be preferred to mine, that I must bear this heavy loss, in order that you may realize this comparatively inconsiderable gain 1

Man. State. You mistake again. This duty is not imposed to favor manufacturers, as a class; but, to encourage manufactures, as an employment. It is not thought good policy, for the United States to depend on foreigners for their manufactures; but the people of the United States cannot afford to manufacture, unless they have the advantage of a protective duty. This duty being imposed, many persons have engaged very largely in this business, whose establishments will be ruined, if the protection is withdrawn. But, why do you not set up manufactures in your state 1

Non-Man. State. And commit a similar act of imprudence! How could they so rashly embark so much capital on the faith of a law, which they ought to have foreseen, must inevitably be repealed, as soon as the Constitutional ground of it should be removed, unless the government of the United States should see fit to violate the constitution, or we should always remain in ignorance of the interests of our state? But, in answer to your question; we cannot manufacture, because we cannot hire laborers whom we can trust, without giving higher wages than you do. Besides, I believe you have many local advantages over us in this respect, so that you would always undersell us. Further; we rather prefer to import goods than waste labor in manufacturing what we can purchase with the earnings of part of that labor, employed in some other way. I protest, however, against any such right as your question implies, of compelling us to turn manufacturers in order to free ourselves from paying this duty.

Man. State. No offence was intended. But, as the encouragement of manufactures is admitted to be of the highest importance to every nation; and, as the United States derive, or soon will derive, the greatest benefit from them, I suggested, that you might have the same benefit that we have from setting up manufactures in our state.

Non-Man. State. I have stated the reasons why we cannot do it, to any advantage. If therefore we are compelled to pay this duty, we are made a sacrifice.

Man. State. Not for our interest alone, however. This tariff is imposed out of regard to the greater good of the whole, which requires that manufactures should be established within the United States.

Non-Man. State. If so; consider, either the advantage to the United States is greater than the loss which I must suffer by it, or it is not. If it be not, it is hardly worth while, that I should be compelled to make a great sacrifice, in order that the United States should derive a less advantage. This would be impolitic as well as ungenerous. If it is more advantageous to the United States, than it is injurious to me, let compensation be made to me, by directing the custom houses in our state, to pay over to the state treasury the amount of all protecting duties collected at them, and I will undertake to satisfy my citizens.

Man. State. It cannot be done; for, if compensation is made to you, it must also be made to all the non-manufacturing states; this would devour all the revenue arising from the protecting duties.

Non-Man. State. And so it ought, if it is not wanted for any constitutional purpose, and the duty is consequently imposed for the benefit of home manufactures solely, while we sustain all the loss.

Man. State. But it is impracticable; because, if the duty operates as a prohibition, no collection will ever take place, because no goods will be imported. If it is merely protective, and the United States permit you to draw back the duty into the state treasury, the law will be inoperative in effect, and importations will remain as before.

Non-Man. State. It is unjust in itself, without any compensation, to make my interest a sacrifice for the advantage either of any particular class of people, or of any particular state or states, or of all the rest of the United States. Even in time of war, the government of the United States cannot, without violating the constitution, deprive an individual of his property for public uses, in cases of the utmost extremity, without full compensation. Why then is the interest of our state to be thus sacrificed in time of peace? How can it be done without violating the constitution?

Man. State. Though your interest, at first sight, may appear to. be Sacrificed, yet, I doubt whether it be so in fact, on account of the advantages, which the United States will derive from the encouragement of manufactures, in which, it is believed your state will participate, either directly or indirectly, in a greater or less. degree, whether you undertake to manufacture or not. But, however this may be, suffer me to remind you, that when the constitution of the United States was formed, the several states made a mutual compromise of their respective interests, and entrusted congress with a power, to lay taxes to provide for the general welfare. Under this power, congress has authority to make an inconsiderable state interest give place to the greater interest of the Union. The exercise of this power must depend upon the discretion of congress, who, coming equally from all the states, can have no interest to sacrifice any particular state for the advantage of the rest. But, where a public measure is of the greatest possible importance to the public welfare, congress ought not to neglect it, merely because it may interfere, in some inferior respect, with the interest of some particular state. Without a compromise of this nature, the constitution never could have been agreed to, because, it is obvious, that no general measure can ever be adopted under it, which will not be more favorable in its operation to some states than to others. The constitution is not a subject for a strictly literal construction; if it were, I should admit that no such power as we contend for, is contained in it; and Mr. Madison, to whom the country is under so great obligations for the part which he took in framing and procuring the adoption of that instrument, is of opinion, that congress possesses the power of imposing duties, under the power to regulate commerce.

Non-Man. State. The greatest deference, without doubt, is due to the opinion of the eminent statesman whom you name; but, in political affairs, there can be no authority but truth, justice, and the stronger argument. Under a power to regulate commerce, it cannot be doubted, that congress has a power to impose such petty exactions, as may be found necessary to effect this constitutional purpose. But, a power to impose duties for the sole purpose of encouraging manufactures, cannot be brought within this power, by any logical deduction, and the power to impose duties, according to the opinion of the supreme court, is part of the taxing power. The powers, which the states have conceded to the general government, it would be very dangerous to extend by construction, or to interpret by opinion. By straining the bands of power, they will break; the states disgusted at the attempt to usurp authority, will consider themselves no longer bound by them; and there is danger that the Union may be dissolved. It would be better, therefore, for congress never to attempt to exercise powers, of the constitutionality of which, there remains a doubt. Instead of strengthening the arm of the general government, such attempts palsy it by the mistrust, disaffection and rancor, which they occasion in all who find themselves aggrieved. There can be no other way to ascertain the meaning of the parties to the constitution, than to apply its language to the situation and circumstances of the country, when it was adopted; for, the constitution, I apprehend, is to be construed according to the real intention of the parties at the time of its adoption ; and, if a certain construction will lead to a conclusion, which the states could never have intended, such construction must be abandoned, even though it may seem not inconsistent with the literal meaning of some general expressions contained in it. It is impossible to suppose, that any state adopted the constitution for the sake of accommodating the interests of the other states, without consulting its own. It is conclusive, therefore, that no state ever contemplated making an agreement, by virtue of which its own interest should be gratuitously sacrificed either for the welfare of the rest, or of any particular state. How then can it be consistent with the true intent of the constitution to enact laws, laying a duty upon foreign goods imported into a non-manufacturing state, merely in order to encourage manufactures in other states?

Man. State. The constitutionality of a law, you will recollect, is to be decided by the supreme court of the United States, and is not a subject for the decision of any other judicial tribunal. Your opinions, though I do not agree with them, may be sound, but, if the supreme court should decide otherwise, they will be unavailing. It is true, however, the case has never been decided by them, and nothing more than an obiter dictum, by which no one will legally be bound, can be had from that tribunal, until the case occurs. But, if it should be decided against you, there is no appeal to any earthly tribunal, except one, which I should be the last to allude to, if we were not continually reminded of it by certain of your citizens.

Non-Man. State. And upon whom must rest the responsibility? If the government of the United States, in violation of the constitution should enact laws, by which we shall feel ourselves oppressed, should we not resist?

Man. State. I think not. For, if the supreme court should decide the laws to be unconstitutional, they become void from that moment. On the other hand, if they decide the laws to be constitutional, you are bound to submit. Will you not submit to the decision of the tribunal, which you have agreed, with the other states, to establish, for the very purpose of settling differences, arising among the states, which can be determined in no other way? If the decision should be in your favor, even contrary to your opinion, I have not so much charity, as to believe, that you will find fault with the decision on that account, or, that you will not think the other states are bound to submit to the decision. If the decision is against you, and you should believe it to be incorrect, will you resist this decision, because you did not find the tribunal, you agreed to establish, infallible? But, though the judges of the supreme court should even be infallible, unless you are so too, which I presume you do not arrogate to yourself, there is no certainty that your opinion will agree with theirs. Is it not better then, that a doubt should be settled by a decision, even though incorrect, than remain a perpetual source of disagreement and ill will?

Non-Man. State. Admitting what you say to be just; the decision of the supreme court will be binding no further, than to settle the legal question; but will by no means determine the political one: that is to say; after the decision of the supreme court against me, I must acknowledge, that I shall have no right whatever, to deny the constitutionality of the law for the purpose of opposing the execution of it; but, if I am fully persuaded, that the decision is contrary to the true intention of the parties to the constitution, and so repugnant to our interests, that the objects which we had in view in adopting it, cannot be obtained, I shall think myself justified in requesting permission of the other states, to withdraw from the Union, peaceably and on equitable terms. For this purpose, if it should ever become necessary, I would not hesitate to call a state convention. I will proceed no further.

Man. State. Permit me then to begin where you leave off. Suppose you call a state convention for the purpose of deliberating on this question; how can you obviate the difficulties, that will meet you at every turn? Suppose a majority of your citizens should be in favor of an application to congress, to obtain the consent of the other states to your secession from the union. Has congress any constitutional authority to act on this subject? Ought not the application to be made to the other states? Yet the state legislatures have no authority on this subject. But, if congress should consider themselves authorized to act on this subject, can you suppose that they will abandon the minority in your state, who wish to abide with the Union? To act on this subject, how can any authority be derived from the people, without resolving society into its original elements? For, as respects all powers not delegated either to the state governments, or to that of the United States, the people are independent of each other. Whence then can the majority derive any right to govern the minority in cases, not provided for either in the constitutions of the states, or in that of the United States? Is it not clear then that those citizens of your state, who wish to remain under the authority of the United States, have a perfect right to do so, and cannot be controlled in this respect, by any act or resolution of a majority of a convention of your citizens? If, therefore, the United States should be perfectly willing that you should withdraw from the union, they will still be bound to protect the dissentients. Will you then partition your state? Certainly not; even the majority, who might be desirous to secede from the Union, if all were unanimous, will be averse to do so, if they find a respectable minority opposed to the measure. In such an extreme case, can you suppose, that you may safely rely on the wisdom, fortitude, perseverance, and disinterested generosity of state heroes who appear so desirous of opposing the execution of the laws of the United States; orators, who, in order to magnify themselves in the eyes of those who are so simple as to be their dupes, make’ the dissolution of the Union, notwithstanding the awful consequences that may result from it, a theme for gasconade and bravado in the irregular assemblies of the people; turbulent champions, who, for greater personal security, carry concealed weapons in time of peace, and bluster in patriotic bombast, at public dinners? Such as these never yet did any thing deserving praise or honor. They know better how to keep their own persons out of danger, than how to secure the welfare of the public. The part of Decius or Leonidas, though often mentioned in holiday orations, and the exercises of the academies, is never performed in our days, except upon the stage. And modern orators, for the most part are proved by experience to be but shallow statesmen ; since their influence over the people, gained by their persuasive but superficial accomplishments, is seldom productive of any effect of general utility; and, while deluding themselves, as well as others with their own eloquence and sophistry, are too ingenious in apology ever to be martyrs; and, being rather inclined to discourse than to act, are totally unfit either for generals or soldiers.
Excuse me;—but, it is to be hoped, that you will not suffer yourself to be under the influence of any such counsels, which, at best can result from nothing better than the vaporing effervescence of patriotic, but mistaken zeal for state interests.

Non. Man. State. I readily accept your apology; but thevolley, which you have just discharged, really excites my admiration. I should have thought, that you had just risen from the perusal of the never-ending, grave and pompous speeches of your own delegation. But, I know it is much easier to praise, than to read those elaborate disquisitions.

But, to return to the subject of discussion, which, in its result, may be of the most unhappy consequence to me, though certainly, if I am wronged by a violation of the constitution, the injury will be felt by all. You are aware of the embarrassment of our situation: The uncertainty whether we shall not, by attempting to obtain redress, put ourselves in a worse condition, than we now are, only aggravates the evil. What are we to dot

Man. State. I do not admit that you suffer any wrong Whatever. But, on the supposition, that the policy of the general government is none of the best; yet have patience, and they will eventually come to the same correct views, which you suppose yourself to entertain, and the injurious laws will then be repealed. Or, if they are right, and their measures are really promotive of your true interests, though they subject you to some temporary disadvantage, be not envious, if these measures appear to you calculated to enrich our state, by enabling us to make the most of those advantages, which nature, in your opinion has afforded us. While a mere majority is sufficient to enact a law, our institutions will never rival those of the Medes and Persians. The redoubled efforts of a large and energetic minority, always has a tendency to keep those public measures, which are of a revocable nature, in a state of oscillancy and equilibration, very favorable to the views of those who think they suffer by them.

But, if the Union should be dissolved, shall we then be safe from each other’s injustice, when we complain while we are united? Can each of us alone resist the attacks of a foreign power? Must we again become provinces?—If we dissolve the Union, such must be our fate, unless we form a new Union. Let us then adhere to the present one. At any rate, let us not be rash; the national debt is not yet paid; and until it is, there is no constitutional ground for controversy in relation to this subject.

Continued in Part III, Chapter III: Of The Policy Which Ought To Be Pursued By The General Government In Relation To Commerce.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
RIGHTS OF AMERICAN CITIZENS: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to agriculture
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to manufactures
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to commerce

Rights of American Citizens: The policy which ought to be pursued by the federal government in relation to agriculture

old-plowing-teamThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

Continued from RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights by officers of the federal government or of state governments

PART III; OF THE POLICY WHICH OUGHT TO BE PURSUED BY THE GENERAL GOVERNMENT IN RELATION TO AGRICULTURE, MANUFACTURES, AND COMMERCE.

CHAPTER 1; Agriculture.

To Discover that condition of a country which contributes, in the highest degree, to the numbers, happiness and security of its inhabitants, is the principal object of political economy.

To consider the local and accidental advantages and disadvantages of a country, and by making the best use of the former, and by obviating the latter as far as practicable, to adopt such public measures, as shall place the country in the nearest approximation to such desirable condition, is the office of wise statesmen in authority.

Where the people of a country are as numerous, as the territory, under the best system of cultivation can support, and consequently every individual has an opportunity of earning a decent living by honest industry and moderate exertion, free from overburdening taxes; where justice can be had at an inconsiderable expense, and is administered promptly and impartially to all, so that the most powerful dare not attempt to practice oppression, and the humblest may, without danger or apprehension, assert his rights and enforce reparation for wrongs; where suitable schools for instruction in all the necessary branches of learning, are provided at the public charge, in order that the people may find it for their interest, As it is their duty, to see that all under their care should be so far instructed; where, on account of the justice, energy and respectability of the government and men in power, the citizens are well treated in foreign countries, and suffer no political oppression from petty domination within the territory of the nation, and consequently the nation is at peace abroad, and the people are in tranquility at home;—the condition of the country may be considered to be as happy as the lot of humanity permits.

If, however, any of these circumstances are wanting, the deficiency, as soon as perceived, points out the mode in which the condition of the country may be improved.

But, though it is the duty of the statesman, as it is the aim of a philanthropist, to fill the country with as many intelligent, virtuous and happy people as possible; yet, if, to increase the population of a country, is only to add to the number of those who are sunk in ignorance, vice and misery, no purposes of human wisdom or benevolence will be answered by any such accession; since neither the sum of human happiness will be enlarged, nor will augmentation result from it, either to the honor or the effective force of the nation. On the contrary, it is rather to be apprehended, that the consequence will be, that corruption in the rulers, and insubordination, profligacy, fraud and violence in the people, will ferment together, until the whole body politic has become a mass of abomination.

And, though in general, it should be the aim of a statesman to increase the wealth of the nation; yet, if it cannot be done without making a very unequal division of property, so that while a few live in magnificence and splendor, and perhaps riot in luxury and licentiousness, the rest suffer every species of hardship and privation,—it would be better to leave the nation in a state of mediocrity, with less difference in this respect. For, a people suffering such an inequality of condition, however opulent as a nation, is in fact miserable and debased.

CorruptGovtThe importance of inculcating religion and morality to the welfare of a people, cannot escape the attention of any friend to his country or to mankind. For, though a nation should be blessed with an abundance of all the necessaries, conveniences, and elegances of life, and should have a numerous population well educated in every respect except those of religion and morality; yet, it is probable, that the influence of bad principles would incline them to be profligate and faithless as individuals, and, as members of society, from too great a fondness for licentiousness under the pretense of liberty, would render them prone to excite public disturbances, insurrections and revolutions, so that the public mind could never hope to remain tranquil any considerable length of time. The destruction of life which results from these causes, seems to be a check, provided by nature to set limits to the multiplication of the worthless and depraved, which seems conformable to the common opinion, that everything bad tends to its own destruction, while everything good tends to continue itself. An increase of the population of a country, however, though it may be favored by the intelligence and virtue of the people, yet indirectly leads in the same proportion to an increase of vice and profligacy, which, having gained a certain height, again reduces the number of the population. And thus the progress of society completes its circle.

The happiness of society consists in the happiness of the individuals which compose it. In order to secure this desirable object, an instinct is implanted in each to induce him to provide for his own welfare. If he is able to do this, then the whole are happy. But as an individual, while pursuing his own happiness, is apt to forget that of others, the restraints of religion, justice, and general expediency are necessary for the equal protection of the rights of all.

To make each individual happy, the readiest way which can be adopted by the government, would seem to be to leave every one to exercise his natural liberty, of consulting his own feelings or taste, subject to those three restraints, viz., that he should do nothing contrary to religion; nothing that shall infringe the rights of others; nothing which the government has forbidden to every one, because contrary to the real or supposed interests of the whole society.

It is true, there are some persons so badly brought up, that they mistake what makes for their true interest; or, else, whose passions are so strong, that they readily fall into any snare which opportunity enables their propensities to set for their judgements; but, for persons subject to such frailty, so long as they keep themselves from crime, government is seldom intrusted with a power to provide any further restraint than what consists in removing, as far as practicable, all occasions for improper indulgences and pursuits; and for the ignorant, government cannot possibly do any thing better than establish institutions for education, in which all who are disposed may be suitably instructed in knowledge, wisdom, and virtue.

Cutting Grain-ReaperIn order that the population of a country should be contented with their condition, and should increase in number, it is indispensably necessary that they should have in their power the means of supplying themselves with all the necessaries and conveniences of life, without being compelled to labor beyond their strength. It is true, the population may continue, under a dearth or scarcity of food; but they cannot increase permanently; a temporary increase converts the inconveniences and privations of scarcity into the extremities and horrors of famine, which checks the growth of the population, by introducing new diseases, and an increased mortality. That countries do sometimes languish in this manner, is not to be denied; and, it happens on account of the unequal distribution of property, resulting from impolitic regulations; in consequence of which, the people, in such countries, instead of being on a level with each other, or, an approximation to it, are divided into three great classes, viz., those who are very rich, those who are in a state of mediocrity, and those who suffer extreme hardship and privation. It is true, these three classes will exist in a greater or less degree in all societies; but those societies will always be most happy, and will increase most fi numbers, in which the level of equality as to property is most nearly preserved. In countries suffering under the effects of such impolitic regulations, no remedy can be had, because the political power is in the hands of the two higher classes; the first of whom adopt such regulations, to keep up the splendid establishments of their families; the second make no objection, because they suffer little or nothing from the consequences.

It is a remark of Machiavel, that, “in the capacities of mankind, there are degrees; one man understands things by his own light, another understands things when they are explained to him; and a third neither can understand them of himself, nor when they are explained to him by others. The first are rare and excellent; the second have their merit, but the last are good for nothing.”

It is apparent, that the great mass of the people in all countries, according to the opinion of this modern Ahithophel, [Ahitophel was a counselor of King David and a man greatly renowned for his sagacity.] may be distributed into the two last classes. In all popular governments, therefore, like that of the United States, where the control of public affairs is left in the hands of rulers chosen by the people, if a bad policy is pursued for any considerable length of time, it can only be ascribed to the numerical majority of the third class, who, on account of their want of intelligence and information as to their true interests, are decreed to be the dupes and natural prey of political impostors. For, otherwise, if public affairs were badly managed, the majority, if consisting of the second class, would immediately perceive it, when pointed out to them, and would elect other rulers.

In this and the following chapters, the inhabitants of a country will be considered as classed under the heads of persons engaged in, 1. Agriculture: 2. Manufactures: 3. Commerce, and 4. all other pursuits, &c. Each of these classes bears a certain proportion to the rest, which however varies with the changing circumstances of a country, to which its number soon conforms. The whole population have a general interest in the prosperity of each of these classes; and yet, in certain particulars, the interest of each of these classes, is more or less at variance with that of the whole. This circumstance does not appear to have attracted much notice, though a disregard of it, would naturally occasion much doubt, perplexity and apparent diversity of opinion. Thus, it is for the interest of all persons engaged in agriculture, that the price of the produce of their labor should be as high as possible; and for this reason, they naturally wish to obtain as extensive a market for it as they can; for the same reason, they would naturally wish to prohibit the importation of the necessaries of life from foreign countries, in order that they may secure the home market to themselves.

But, in some of these respects, the interests of the rest of Society are contrary. For, they very naturally desire that the produce of the soil and all the necessaries of life should be as cheap as possible; and consequently, when agricultural produce is cheaper abroad than it is at home, it is for the general interest, that it should have a free admission into the ports of the country.

It is for the interests of persons engaged in agriculture, as well as all the rest of society, that their produce should be consumed within the country, if the producer can realize an – equal value for it, on account of the ulterior advantages. But whether he realizes an equal value for it or not, it is for the interest of the rest of society, that it should be retained within the country, because it will render the necessaries of life cheap.

horn-of-plentyAs the strength of a country depends upon the number of its inhabitants, and as the population cannot increase without a sufficient supply of the necessaries of life, an abundant supply of such necessaries, constitutes the true wealth of a country, because it constitutes a fund to support a population in proportion to it. In comparison with this object in a national point of view, the accumulation of money, or any other articles, however difficult to be obtained, and of whatever price, is of no real importance. But, where there is a great abundance of those necessary articles, they become proportionally cheap, so that the producer, with an equal quantity of them, is also proportionally less rich. To make the interest of the producer consistent with that of the rest of society, there is no other way, than to provide him with a home market, sufficient to engross all the surplus produce beyond what he raises for his own consumption. For, if any part of the necessaries of life raised in this country, are consumed abroad, it is demonstrable that the country docs not maintain at home so many inhabitants as it might, by the precise number of those persons who are supported abroad by such supplies.

The effect of a surplus produce of the necessaries of life, which is not exported, is to keep the price of provisions low. This will favor an increase of population, because the cheapness of the necessaries of life will render it so much the easier to support a family; if therefore no other home market is found, the increase of population will supply one, by keeping pace with the surplus production; on the supposition that the course of public measures is not changed suddenly.

As the people of the United States possess a new country, having in general a fertile soil and a healthy climate, it would seem unnecessary to make use of any other measures, to induce a proper proportion of the people to cultivate the soil, than to take off every species of check, discouragement or hindrance whatever, which could deter them from undertaking a business, in which their own interests as well as the interests of the whole, are so deeply concerned.

For, as it is calculated, that a man engaged in agriculture may, by his own labor alone, support from four to eight persons besides himself, according to circumstances, nature here performing from three fourths to seven eighths of all the work, a farmer skilful, temperate, industrious and prudent, having made a judicious choice of his land, will be pretty sure of getting a good living, and perhaps even of growing rich in property, whether he can sell his surplus produce or not.

It would seem therefore to be the true policy of a country thus situated, to render the price of land as cheap as possible to actual settlers, to whom it is apparent, one half of all the unsettled lands belonging to the United States, might.even be given away, if managed judiciously, without any loss; since the alternate lots or tracts would rise in value in consequence of the settlements, so that from them .the United States would ultimately realize more in value, than they will from the,whole, at the rate at which government lands are now selling.

To render the price of land cheap, no measure however should be adopted, which effects this purpose by reducing its value. To lay a heavy land tax would render it cheap, but it would be because it would reduce its value. This would be bad policy. It would operate as a discouragement to agriculture. It would be far better to exempt all government lands sold lo actual settlers, from all taxes for a certain number of years.

To render valuable land cheap, land speculators and monopolizers should be discountenanced as much as possible, because, being usually wealthy men, and having in their power the means of ascertaining pretty accurately the relative value of lands in different parts of the territories of the United States, they may buy up the most valuable tracts, for the purpose of selling them out again, at a great advance to actual settlers. This consideration will be of more importance at a future period, when public lands are more scarce than they are now. Land speculators should also be discountenanced, because they discourage agriculture, by raising the price of land, yet keeping it idle and unproductive.

But the encouragement of agriculture, after settlements are once made, seems to come more properly within the province of the state or local governments. The variety of soil and production in different states and territories, would render any general regulations, if congress could be considered as having any authority to make them, impracticable, or partially inapplicable. The policy of the states and territories would naturally be to render the partition of lands among heirs, as speedy and as little expensive as possible; because undivided estates are much less likely to be put in a high state of improvement, than those which are owned by a single individual. The same remark applies to the lands of minors, which, it would be for their interest as well as that of the public, to have sold, and the proceeds invested. The minors in this way, would receive a greater income, and the land would be improved by the interested enterprise of an owner, instead of languishing under the care of a guardian or trustee.

Until the supply of the necessaries of life is sufficiently abundant not only to provide for the present population, but is in a train to keep pace with the regular increase of such population ; and, until there is an abundant supply of all the raw material, which the people may manufacture to advantage, and which the country is well adapted to produce, it is not for the interest of any state, that any portion of its labor should be applied to the raising of any raw material for the foreign market. Because, it is better for the country rather to encourage home manufactures than foreign ones, when they come in competition. It is not intended to deny, however, that cases may exist, where it will be for the interest of individuals to raise the raw material for foreign manufactures.

For a similar reason, it can never be for the interest of a state, that any part of its soil should be used to raise articles of mere luxury, either for home consumption, or for exportation. In either case, neither the wealth nor the population of the country is increased by it. It is true, as in the former case, individuals may enrich themselves by it; but the advantage which they will derive from such an application of their labor, and of the soil, will be far less than society would derive from an application of their labor to the production either of the necessaries of life, or the raw material for home manufactures. If any such use of the soil tends to exhaust it, and after a few years render it barren and unproductive, the state will be rather impoverished than enriched by such a misapplication of its natural resources.

The effect of an abundance of provisions and of the necessaries of life, is to render the price of labor cheaper with regard to every thing but those necessaries. The consequence of this cheapness of labor would be, that more laborers might be employed in manufactures, for the same amount of wages; it would then follow, that manufactures also would become abundant, and, of course, would grow cheaper, until they found their level in this particular with the produce of agriculture ;—every other product or application of labor would also find its level in the same way. But if so, it may be asked, what advantage would follow? The answer is, that two advantages would result. 1. The population of the state would equally enjoy an abundance of every thing raised or produced within it, until it had increased so much, as, by its increased consumption, to raise the price of every thing again. But, if the increase of population were distributed among the various employments existing in the society, according to the existing proportion, and the same judicious measures were continued, the production of the necessaries of life would still keep in advance of consumption, until the territory of the state contained as many inhabitants as it could support. 2. The cheapness of labor, would render manufactures cheaper in comparison with foreign manufactures, so that there would be less occasion for protection by imposts, against their competition in the home market; it would also better enable home manufactures to enter into competition with foreign manufactures, in the various foreign markets abroad.

In order to secure these advantages, it would be good policy in an agricultural state, to adopt some such measures as the following: 1. To remit the land tax entirely in favor of all lands employed in the production of the necessaries of life: 2. To discourage all manufactures which have for their object, to convert any agricultural product, used for food and constituting one of the necessaries of life, into an article incapable of sustaining it, whether for home consumption, or for exportation: 3. To discourage the exportation of all articles capable of sustaining human life, and commonly used as food.

For, in order to insure an abundance of the necessaries of life, it is not enough to encourage agriculture; because, however abundant production may be, if it is either wasted, manufactured into a useless article of mere luxury, whether for home consumption, or to be sent abroad, and the price returned in similar articles of luxury, the state will derive no advantage from such abundant production; since the scarcity, and the high prices will be the same to the people of the state, as if less land had been cultivated, or the crops had been bad in proportion. It is not however intended to deny, that the producer or the manufacturer in such case, might have an opportunity of indulging himself in luxury and extravagance, or, if he were prudent, might enrich himself; the subject under consideration is the policy of the state.

On the contrary, where an adequate supply of the necessaries of life cannot be obtaiued, not only the irregularity in the transaction of business, but the misery and suffering occasioned by it, are necessarily very great. The weakest and humblest class of society, is that which feels it first. For, the day laborer will soon find that by working all day, he will not be able to earn wages enough to purchase the necessaries of life; and, if the evil continues long, the consequence will be, that deficient and improper food will king on an increased mortality upon the sufferers, until their numbers are reduced to correspond with the produce of the country, which is applied to the support of life. During such a period of distress, the price of labor becomes reduced to its lowest rate, because many persons will resort to day wages for the purpose of earning sufficient to sustain life. But, on this very account, as well as because many persons will then do their own work, who, if times were better, would hire it dorte, the demand for labor will be very small. And though, as a general rule, men will not work for less wages than are sufficient to furnish them with the necessaries of life; yet, under such circumstances, they will labor for whatever price they can obtain, in the attempt to shun famine and starvation. All other products of labor then immediately become very cheap, and yet the production of them diminishes, because no one can obtain a living by producing them. Where the necessaries of life are abundant, all other products of labor also will gradually become cheap, on account of their abundance. Where there is an extreme scarcity of the necessaries of life, all other products of labor will also become cheap, on account of their little value in comparison with those necessaries. In this latter case, these products of labor will be cheap, even though they may be scarce, and they will grow more scarce until they are reduced to a minimum. In the former case, they will still be produced, notwithstanding their cheapness, and while the same cause continues, will rather increase in production, to a maximum.

But, in any state within the United States, long before coming to any such extremity, a very different scene will be presented. For, as soon as all the lands are taken up by private proprietors, and from whatever cause, whether the unproductiveness of the soil, or misuse of produce, the necessaries of life become scarce and proportionally dear, those persons who cannot obtain a living by moderate exertion, and especially if they are bold and enterprising, will immediately remove to some of the new states, where the means of subsistence can be had with less labor, and where competency and independence will be more within their reach. The bad consequences of the impolicy before suggested, will here be very striking; because, the emigrants are in the vigor of life, and each carries more or less property with him. There is therefore a double loss to the state from which they emigrate.

Continued in Part III, Chapter II: Of The Policy Which Ought To Be Pursued By The General Government In Relation To Manufactures.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

Patrick Henry may well be proved a Prophet as well as a Statesman

Patrick_HenryPatrick Henry speech Thursday, June 5, 1788, on the dangerous ambiguities of the Constitution; it should be noted that Henry also demanded a Bill of Rights to be added to the Constitution which it later was. Yet when the Federal Government ignores, misrepresents, misconstrues, subverts and otherwise seeks to undermine the content of the very foundations of our Republic, laws, and Constitution, what are we the citizens, We The People to do as a matter of recourse? Are we left with a weak and ineffectual Congress of which, we see today, that seems to be utterly averse to even use their powers of subpoena to get answers from the White House administration about the tragedies, malfeasance, and abuse of power by people in the administration and those bureaucrats under them!?!

I say No!, It is time we and our representatives in Congress held this government and bureaucracy accountable, it is time they were held to the same standard and account they hold We The American People to, and if our representatives are unable to brave the storm, it is time to hold them accountable and replace them with those of a stronger disposition who will!

See also: The Greatest Speech in American History (Give me Liberty or Give me Death) by Patrick Henry

Henry was a great advocate of individual liberty and was concerned the concentration of power in the hands of a federal government would lead to the erosion of the liberties then enjoyed by the people of the individual states and to the erosion of the rights of those states as individual members of a confederation. See the Virginia Bill of Rights at the bottom of the page. At the Virginia ratification debates of 1788, Patrick Henry denied that the propaganda of the Federalists was based on anything but scare tactics, and defied the Federalists to provide convincing evidence that the Articles of Confederation had not provided what the colonists had fought for in the Revolution. Indeed, Henry contended, to adopt the new Constitution would be akin to a Revolution greater than the one just finished, except this revolution was of an older variety.

I am a determined foe to tyranny; I know that tyranny seldom attacks the poor; never in the first instance. They are not its proper prey. It falls on the wealthy and the great, whom by rendering objects of envy, and likewise obnoxious to the multitude, it may more easily destroy, and when they are destroyed, that multitude which was led to that ill work by the hands of bad men, is itself undone for ever…I hate tyranny. But I hate it worst of all where most are concerned in it. The tyranny of a multitude is a multiplied tyranny. ~ Edmund Burke

Mr. Chairman, I am much obliged to the very worthy gentleman for his encomium. I wish I was possessed with talents, or possessed of any thing that might enable me to elucidate this great subject. I am not free from suspicion: I am apt to entertain doubts. I rose yesterday to ask a question which arose in my own mind. When I asked that question, I thought the meaning of my interrogation was obvious. The fate of this question and of America may depend on this. Have they said, We, the states? Have they made a proposal of a compact between states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing — the expression, We, the people, instead of the states, of America. I need not take much pains to show that the principles of this system are extremely pernicious, impolitic, and dangerous. Is this a monarchy, like England — a compact between prince and people, with checks on the former to secure the liberty of the latter? Is this a confederacy, like Holland — an association of a number of independent states, each of which retains its individual sovereignty? It is not a democracy, wherein the people retain all their rights securely. Had these principles been adhered to, we should not have been brought to this alarming transition, from a confederacy to a consolidated government. We have no detail of these great considerations, which, in my opinion, ought to have abounded before we should recur to a government of this kind. Here is a revolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the states will be relinquished: and cannot we plainly see that this is actually the case? The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, and inconsiderately by others. Is this tame relinquishment of rights worthy of freemen? Is it worthy of that manly fortitude that ought to characterize republicans? It is said eight states have adopted this plan. I declare that if twelve states and a half had adopted it, I would, with manly firmness, and in spite of an erring world, reject it. You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government.

Having premised these things, I shall, with the aid of my judgment and information, which, I confess, are not extensive, go into the discussion of this system more minutely. Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessing — give us that precious jewel, and you may take every thing else! But I am fearful I have lived long enough to become an old-fashioned fellow. Perhaps an invincible attachment to the dearest rights of man may, in these refined, enlightened days, be deemed old-fashioned; if so, I am contented to be so. I say, the time has been when every pulse of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American; but suspicions have gone forth — suspicions of my integrity — publicly reported that my professions are not real. Twenty-three years ago was I supposed a traitor to my country? I was then said to be the bane of sedition, because I supported the rights of my country. I may be thought suspicious when I say our privileges and rights are in danger. But, sir, a number of the people of this country are weak enough to think these things are too true. I am happy to find that the gentleman on the other side declares they are groundless. But, sir, suspicion is a virtue as long as its object is the preservation of the public good, and as long as it stays within proper bounds: should it fall on me, I am contented: conscious rectitude is a powerful consolation. I trust there are many who think my professions for the public good to be real. Let your suspicion look to both sides. There are many on the other side, who possibly may have been persuaded to the necessity of these measures, which I conceive to be dangerous to your liberty. Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined. I am answered by gentlemen, that, though I might speak of terrors, yet the fact was, that we were surrounded by none of the dangers I apprehended. I conceive this new government to be one of those dangers: it has produced those horrors which distress many of our best citizens. We are come hither to preserve the poor commonwealth of Virginia, if it can be possibly done: something must be done to preserve your liberty and mine. The Confederation, this same despised government, merits, in my opinion, the highest encomium: it carried us through a long and dangerous war; it rendered us victorious in that bloody conflict with a powerful nation; it has secured us a territory greater than any European monarch possesses: and shall a government which has been thus strong and vigorous, be accused of imbecility, and abandoned for want of energy? Consider what you are about to do before you part with the government. Take longer time in reckoning things; revolutions like this have happened in almost every country in Europe; similar examples are to be found in ancient Greece and ancient Rome — instances of the people losing their liberty by their own carelessness and the ambition of a few. We are cautioned by the honorable gentleman, who presides, against faction and turbulence. I acknowledge that licentiousness is dangerous, and that it ought to be provided against: I acknowledge, also, the new form of government may effectually prevent it: yet there is another thing it will as effectually do — it will oppress and ruin the people.

There are sufficient guards placed against sedition and licentiousness; for, when power is given to this government to suppress these, or for any other purpose, the language it assumes is clear, express, and unequivocal; but when this Constitution speaks of privileges, there is an ambiguity, sir, a fatal ambiguity — an ambiguity which is very astonishing. In the clause under consideration, there is the strangest language that I can conceive. I mean, when it says that there shall not be more representatives than one for every thirty thousand. Now, sir, how easy is it to evade this privilege! “The number shall not exceed one for every thirty thousand.” This may be satisfied by one representative from each state. Let our numbers be ever so great, this immense continent may, by this artful expression, be reduced to have but thirteen representatives. I confess this construction is not natural; but the ambiguity of the expression lays a good ground for a quarrel. Why was it not clearly and unequivocally expressed, that they should be entitled to have one for every thirty thousand? This would have obviated all disputes; and was this difficult to be done? What is the inference? When population increases, and a state shall send representatives in this proportion, Congress may remand them, because the right of having one for every thirty thousand is not clearly expressed. This possibility of reducing the number to one for each state approximates to probability by that other expression — “but each state shall at least have one representative.” Now, is it not clear that, from the first expression, the number might be reduced so much that some states should have no representatives at all, were it not for the insertion of this last expression? And as this is the only restriction upon them, we may fairly conclude that they may restrain the number to one from each state. Perhaps the same horrors may hang over my mind again. I shall be told I am continually afraid: but, sir, I have strong cause of apprehension. In some parts of the plan before you, the great rights of freemen are endangered; in other parts, absolutely taken away. How does your trial by jury stand? In civil cases gone — not sufficiently secured in criminal — this best privilege is gone. But we are told that we need not fear; because those in power, being our representatives, will not abuse the powers we put in their hands. I am not well versed in history, but I will submit to your recollection, whether liberty has been destroyed most often by the licentiousness of the people, or by the tyranny of rulers. I imagine, sir, you will find the balance on the side of tyranny. Happy will you be if you miss the fate of those nations, who, omitting to resist their oppressors, or negligently suffering their liberty to be wrested from them, have groaned under intolerable despotism! Most of the human race are now in this deplorable condition; and those nations who have gone in search of grandeur, power, and splendor, have also fallen a sacrifice, and been the victims of their own folly. While they acquired those visionary blessings, they lost their freedom. My great objection to this government is, that it does not leave us the means of defending our rights, or of waging war against tyrants. It is urged by some gentlemen, that this new plan will bring us an acquisition of strength — an army, and the militia of the states. This is an idea extremely ridiculous: gentlemen cannot be earnest. This acquisition will trample on our fallen liberty. Let my beloved Americans guard against that fatal lethargy that has pervaded the universe. Have we the means of resisting disciplined armies, when our only defence, the militia, is put into the hands of Congress? The honorable gentleman said that great danger would ensue if the Convention rose without adopting this system. I ask, Where is that danger? I see none. Other gentlemen have told us, within these walls, that the union is gone, or that the union will be gone. Is not this trifling with the judgment of their fellow-citizens? Till they tell us the grounds of their fears, I will consider them as imaginary. I rose to make inquiry where those dangers were; they could make no answer: I believe I never shall have that answer. Is there a disposition in the people of this country to revolt against the dominion of laws? Has there been a single tumult in Virginia? Have not the people of Virginia, when laboring under the severest pressure of accumulated distresses, manifested the most cordial acquiescence in the execution of the laws? What could be more awful than their unanimous acquiescence under general distresses? Is there any revolution in Virginia? Whither is the spirit of America gone? Whither is the genius of America fled? It was but yesterday, when our enemies marched in triumph through our country. Yet the people of this country could not be appalled by their pompous armaments: they stopped their career, and victoriously captured them. Where is the peril, now, compared to that? Some minds are agitated by foreign alarms. Happily for us, there is no real danger from Europe; that country is engaged in more arduous business: from that quarter there is no cause of fear: you may sleep in safety forever for them.

Where is the danger? If, sir, there was any, I would recur to the American spirit to defend us; that spirit which has enabled us to surmount the greatest difficulties: to that illustrious spirit I address my most fervent prayer to prevent our adopting a system destructive to liberty. Let not gentlemen be told that it is not safe to reject this government. Wherefore is it not safe? We are told there are dangers, but those dangers are ideal; they cannot be demonstrated. To encourage us to adopt it, they tell us that there is a plain, easy way of getting amendments. When I come to contemplate this part, I suppose that I am mad, or that my countrymen are so. The way to amendment is, in my conception, shut. Let us consider this plain, easy way. “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a Convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by the Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress. Provided, that no amendment which may be made prior to the year 1808, shall in any manner affect the 1st and 4th clauses in the 9th section of the 1st article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

Hence it appears that three fourths of the states must ultimately agree to any amendments that may be necessary. Let us consider the consequence of this. However uncharitable it may appear, yet I must tell my opinion — that the most unworthy characters may get into power, and prevent the introduction of amendments. Let us suppose — for the case is supposable, possible, and probable — that you happen to deal those powers to unworthy hands; will they relinquish powers already in their possession, or agree to amendments? Two thirds of the Congress, or of the state legislatures, are necessary even to propose amendments. If one third of these be unworthy men, they may prevent the application for amendments; but what is destructive and mischievous, is, that three fourths of the state legislatures, or of the state conventions, must concur in the amendments when proposed! In such numerous bodies, there must necessarily be some designing, bad men. To suppose that so large a number as three fourths of the states will concur, is to suppose that they will possess genius, intelligence, and integrity, approaching to miraculous. It would indeed be miraculous that they should concur in the same amendments, or even in such as would bear some likeness to one another; for four of the smallest states, that do not collectively contain one tenth part of the population of the United States, may obstruct the most salutary and necessary amendments. Nay, in these four states, six tenths of the people may reject these amendments; and suppose that amendments shall be opposed to amendments, which is highly probable, — is it possible that three fourths can ever agree to the same amendments? A bare majority in these four small states may hinder the adoption of amendments; so that we may fairly and justly conclude that one twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression, by refusing to accede to amendments. A trifling minority may reject the most salutary amendments. Is this an easy mode of securing the public liberty It is, sir, a most fearful situation, when the most contemptible minority can prevent the alteration of the most oppressive government; for it may, in many respects, prove to be such. Is this the spirit of republicanism?

What, sir, is the genius of democracy? Let me read that clause of the bill of rights of Virginia which relates to this: 3d clause: — that government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community. Of all the various modes and forms of government, that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration; and that whenever any government shall be found inadequate, or contrary to those purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

This, sir, is the language of democracy — that a majority of the community have a right to alter government when found to be oppressive. But how different is the genius of your new Constitution from this! How different from the sentiments of freemen, that a contemptible minority can prevent the good of the majority! If, then, gentlemen, standing on this ground, are come to that point, that they are willing to bind themselves and their posterity to be oppressed, I am amazed and inexpressibly astonished. If this be the opinion of the majority, I must submit; but to me, sir, it appears perilous and destructive. I cannot help thinking so. Perhaps it may be the result of my age. These may be feelings natural to a man of my years, when the American spirit has left him, and his mental powers, like the members of the body, are decayed. If, sir, amendments are left to the twentieth, or tenth part of the people of America, your liberty is gone forever. We have heard that there is a great deal of bribery practised in the House of Commons, in England, and that many of the members raise themselves to preferments by selling the rights of the whole of the people. But, sir, the tenth part of that body cannot continue oppression on the rest of the people. English liberty is, in this case, on a firmer foundation than American liberty. It will be easily contrived to procure the opposition of one tenth of the people to any alteration, however judicious. The honorable gentleman who presides told us that, to prevent abuses in our government, we will assemble in Convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone; and you have no longer an aristocratical, no longer a democratical spirit. Did you ever read of any revolution in a nation, brought about by the punishment of those in power, inflicted by those who had no power at all? You read of a riot act in a country which is called one of the freest in the world, where a few neighbors cannot assemble without the risk of being shot by a hired soldiery, the engines of despotism. We may see such an act in America.

A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment? In what situation are we to be? The clause before you gives a power of direct taxation, unbounded and unlimited, exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all places purchased for the erection of forts, magazines, arsenals, dockyards, &c. What resistance could be made? The attempt would be madness. You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.

Let me here call your attention to that part which gives the Congress power “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States — reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.” By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither — this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression. Will the oppressor let go the oppressed? Was there ever an instance? Can the annals of mankind exhibit one single example where rulers overcharged with power willingly let go the oppressed, though solicited and requested most earnestly? The application for amendments will therefore be fruitless. Sometimes, the oppressed have got loose by one of those bloody struggles that desolate a country; but a willing relinquishment of power is one of those things which human nature never was, nor ever will be, capable of.

The honorable gentleman’s observations, respecting the people’s right of being the agents in the formation of this government, are not accurate, in my humble conception. The distinction between a national government and a confederacy is not sufficiently discerned. Had the delegates, who were sent to Philadelphia, a power to propose a consolidated government instead of a confederacy? Were they not deputed by states, and not by the people? The assent of the people, in their collective capacity, is not necessary to the formation of a federal government. The people have no right to enter into leagues, alliances, or confederations; they are not the proper agents for this purpose. States and foreign powers are the only proper agents for this kind of government. Show me an instance where the people have exercised this business. Has it not always gone through the legislatures? I refer you to the treaties with France, Holland, and other nations. How were they made? Were they not made by the states? Are the people, therefore, in their aggregate capacity, the proper persons to form a confederacy? This, therefore, ought to depend on the consent of the legislatures, the people having never sent delegates to make any proposition for changing the government. Yet I must say, at the same time, that it was made on grounds the most pure; and perhaps I might have been brought to consent to it so far as to the change of government. But there is one thing in it which I never would acquiesce in. I mean, the changing it into a consolidated government, which is so abhorrent to my mind. [The honorable gentleman then went on to the figure we make with foreign nations; the contemptible one we make in France and Holland; which, according to the substance of the notes, he attributes to the present feeble government.] An opinion has gone forth, we find, that we are contemptible people: the time has been when we were thought otherwise. Under the same despised government, we commanded the respect of all Europe: wherefore are we now reckoned otherwise? The American spirit has fled from hence: it has gone to regions where it has never been expected; it has gone to the people of France, in search of a splendid government — a strong, energetic government. Shall we imitate the example of those nations who have gone from a simple to a splendid government? Are those nations more worthy of our imitation? What can make an adequate satisfaction to them for the loss they have suffered in attaining such a government — for the loss of their liberty? If we admit this consolidated government, it will be because we like a great, splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy, and a number of things. When the American spirit was in its youth, the language of America was different: liberty, sir, was then the primary object. We are descended from a people whose government was founded on liberty: our glorious forefathers of Great Britain made liberty the foundation of every thing. That country is become a great, mighty, and splendid nation; not because their government is strong and energetic, but, sir, because liberty is its direct end and foundation. We drew the spirit of liberty from our British ancestors: by that spirit we have triumphed over every difficulty. But now, sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire. If you make the citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together. Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances, in this government. What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances? But, sir, we are not feared by foreigners; we do not make nations tremble. Would this constitute happiness, or secure liberty? I trust, sir, our political hemisphere will ever direct their operations to the security of those objects.

Consider our situation, sir: go to the poor man, and ask him what he does. He will inform you that he enjoys the fruits of his labor, under his own fig-tree, with his wife and children around him, in peace and security. Go to every other member of society, — you will find the same tranquil ease and content; you will find no alarms or disturbances. Why, then, tell us of danger, to terrify us into an adoption of this new form of government? And yet who knows the dangers that this new system may produce? They are out of the sight of the common people: they cannot foresee latent consequences. I dread the operation of it on the middling and lower classes of people: it is for them I fear the adoption of this system. I fear I tire the patience of the committee; but I beg to be indulged with a few more observations. When I thus profess myself an advocate for the liberty of the people, I shall be told I am a designing man, that I am to be a great man, that I am to be a demagogue; and many similar illiberal insinuations will be thrown out: but, sir, conscious rectitude outweighs those things with me. I see great jeopardy in this new government. I see none from our present one. I hope some gentleman or other will bring forth, in full array, those dangers, if there be any, that we may see and touch them. I have said that I thought this a consolidated government: I will now prove it. Will the great rights of the people be secured by this government? Suppose it should prove oppressive, how can it be altered? Our bill of rights declares, “that a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.”

I have just proved that one tenth, or less, of the people of America — a most despicable minority — may prevent this reform or alteration. Suppose the people of Virginia should wish to alter their government; can a majority of them do it? No; because they are connected with other men, or, in other words, consolidated with other states. When the people of Virginia, at a future day, shall wish to alter their government, though they should be unanimous in this desire, yet they may be prevented therefrom by a despicable minority at the extremity of the United States. The founders of your own Constitution made your government changeable: but the power of changing it is gone from you. Whither is it gone? It is placed in the same hands that hold the rights of twelve other states; and those who hold those rights have right and power to keep them. It is not the particular government of Virginia: one of the leading features of that government is, that a majority can alter it, when necessary for the public good. This government is not a Virginian, but an American government. Is it not, therefore, a consolidated government? The sixth clause of your bill of rights tells you, “that elections of members to serve as representatives of the people in Assembly ought to be free, and that all men having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed, or deprived of their property for public uses, without their own consent, or that of their representatives so elected, nor bound by any law to which they have not in like manner assented for the public good.” But what does this Constitution say? The clause under consideration gives an unlimited and unbounded power of taxation. Suppose every delegate from Virginia opposes a law laying a tax; what will it avail? They are opposed by a majority; eleven members can destroy their efforts: those feeble ten cannot prevent the passing the most oppressive tax law; so that, in direct opposition to the spirit and express language of your declaration of rights, you are taxed, not by your own consent, but by people who have no connection with you.

The next clause of the bill of rights tells you, “that all power of suspending law, or the execution of laws, by any authority, without the consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.” This tells us that there can be no suspension of government or laws without our own consent; yet this Constitution can counteract and suspend any of our laws that contravene its oppressive operation; for they have the power of direct taxation, which suspends our bill of rights; and it is expressly provided that they can make all laws necessary for carrying their powers into execution; and it is declared paramount to the laws and constitutions of the states. Consider how the only remaining defence we have left is destroyed in this manner. Besides the expenses of maintaining the Senate and other house in as much splendor as they please, there is to be a great and mighty President, with very extensive powers — the powers of a king. He is to be supported in extravagant magnificence; so that the whole of our property may be taken by this American government, by laying what taxes they please, giving themselves what salaries they please, and suspending our laws at their pleasure. I might be thought too inquisitive, but I believe I should take up very little of your time in enumerating the little power that is left to the government of Virginia; for this power is reduced to little or nothing: their garrisons, magazines, arsenals, and forts, which will be situated in the strongest places within the states; their ten miles square, with all the fine ornaments of human life, added to their powers, and taken from the states, will reduce the power of the latter to nothing.

The voice of tradition, I trust, will inform posterity of our struggles for freedom. If our descendants be worthy the name of Americans, they will preserve, and hand down to their latest posterity, the transactions of the present times; and, though I confess my exclamations are not worthy the hearing, they will see that I have done my utmost to preserve their liberty; for I never will give up the power of direct taxation but for a scourge. I am willing to give it conditionally; that is, after non-compliance with requisitions. I will do more, sir, and what I hope will convince the most skeptical man that I am a lover of the American Union — that, in case Virginia shall not make punctual payment, the control of our custom-houses, and the whole regulation of trade, shall be given to Congress, and that Virginia shall depend on Congress even for passports, till Virginia shall have paid the last farthing, and furnished the last soldier. Nay, sir, there is another alternative to which I would consent; — even that they should strike us out of the Union, and take away from us all federal privileges, till we comply with federal requisitions: but let it depend upon our own pleasure to pay our money in the most easy manner for our people. Were all the states, more terrible than the mother country, to join against us, I hope Virginia could defend herself; but, sir, the dissolution of the Union is most abhorrent to my mind. The first thing I have at heart is American liberty: the second thing is American union; and I hope the people of Virginia will endeavor to preserve that union. The increasing population of the Southern States is far greater than that of New England; consequently, in a short time, they will be far more numerous than the people of that country. Consider this, and you will find this state more particularly interested to support American liberty, and not bind our posterity by an improvident relinquishment of our rights. I would give the best security for a punctual compliance with requisitions; but I beseech gentlemen, at all hazards, not to give up this unlimited power of taxation. The honorable gentleman has told us that these powers, given to Congress, are accompanied by a judiciary which will correct all. On examination, you will find this very judiciary oppressively constructed; your jury trial destroyed, and the judges dependent on Congress.

In this scheme of energetic government, the people will find two sets of tax-gatherers — the state and the federal sheriffs. This, it seems to me, will produce such dreadful oppression as the people cannot possibly bear. The federal sheriff may commit what oppression, make what distresses, he pleases, and ruin you with impunity; for how are you to tie his hands? Have you any sufficiently decided means of preventing him from sucking your blood by speculations, commissions, and fees? Thus thousands of your people will be most shamefully robbed: our state sheriffs, those unfeeling blood-suckers have, under the watchful eye of our legislature, committed the most horrid and barbarous ravages on our people. It has required the most constant vigilance of the legislature to keep them from totally ruining the people; a repeated succession of laws has been made to suppress their iniquitous speculations and cruel extortions; and as often has their nefarious ingenuity devised methods of evading the force of those laws: in the struggle they have generally triumphed over the legislature.

It is a fact that lands have been sold for five shillings, which were worth one hundred pounds: if sheriffs, thus immediately under the eye of our state legislature and judiciary, have dared to commit these outrages, what would they not have done if their masters had been at Philadelphia or New York? If they perpetrate the most unwarrantable outrage on your person or property, you cannot get redress on this side of Philadelphia or New York; and how can you get it there? If your domestic avocations could permit you to go thither, there you must appeal to judges sworn to support this Constitution, in opposition to that of any state, and who may also be inclined to favor their own officers. When these harpies [i.e. predatory people] are aided by excisemen [i.e. Tax Men or Internal Revenue Service (IRS) Employees], who may search, at any time, your houses, and most secret recesses, will the people bear it? If you think so, you differ from me. Where I thought there was a possibility of such mischiefs, I would grant power with a niggardly hand; and here there is a strong probability that these oppressions shall actually happen. I may be told that it is safe to err on that side, because such regulations may be made by Congress as shall restrain these officers, and because laws are made by our representatives, and judged by righteous judges: but, sir, as these regulations may be made, so they may not; and many reasons there are to induce a belief that they will not. I shall therefore be an infidel on that point till the day of my death.

This Constitution is said to have beautiful features; but when I come to examine these features, sir, they appear to me horribly frightful. Among other deformities, it has an awful squinting; it squints towards monarchy; and does not this raise indignation in the breast of every true American?

Your President may easily become king. Your Senate is so imperfectly constructed that your dearest rights may be sacrificed by what may be a small minority; and a very small minority may continue forever unchangeably this government, although horridly defective. Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world, from the eastern to the western hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.

If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands, and if he be a man of address, it will be attached to him, and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design; and, sir, will the American spirit solely relieve you when this happens? I would rather infinitely — and I am sure most of this Convention are of the same opinion — have a king, lords, and commons, than a government so replete with such insupportable evils. If we make a king, we may prescribe the rules by which he shall rule his people, and interpose such checks as shall prevent him from infringing them; but the President, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke. I cannot with patience think of this idea. If ever he violates the laws, one of two things will happen: he will come at the head of his army, to carry every thing before him; or he will give bail, or do what Mr. Chief Justice will order him. If he be guilty, will not the recollection of his crimes teach him to make one bold push for the American throne? Will not the immense difference between being master of every thing, and being ignominiously tried and punished, powerfully excite him to make this bold push? But, sir, where is the existing force to punish him? Can he not, at the head of his army, beat down every opposition? Away with your President! we shall have a king: the army will salute him monarch: your militia will leave you, and assist in making him king, and fight against you: and what have you to oppose this force? What will then become of you and your rights? Will not absolute despotism ensue?

[Here Mr. HENRY strongly and pathetically expatiated on the probability of the President’s enslaving America, and the horrid consequences that must result.]

What can be more defective than the clause concerning the elections? The control given to Congress over the time, place, and manner of holding elections, will totally destroy the end of suffrage. The elections may be held at one place, and the most inconvenient in the state; or they may be at remote distances from those who have a right of suffrage: hence nine out of ten must either not vote at all, or vote for strangers; for the most influential characters will be applied to, to know who are the most proper to be chosen. I repeat, that the control of Congress over the manner, &c., of electing, well warrants this idea. The natural consequence will be, that this democratic branch will possess none of the public confidence; the people will be prejudiced against representatives chosen in such an injudicious manner. The proceedings in the northern conclave will be hidden from the yeomanry of this country. We are told that the yeas and nays shall be taken, and entered on the journals. This, sir, will avail nothing: it may be locked up in their chests, and concealed forever from the people; for they are not to publish what parts they think require secrecy: they may think, and will think, the whole requires it. Another beautiful feature of this Constitution is, the publication from time to time of the receipts and expenditures of the public money.

This expression, from time to time, is very indefinite and indeterminate: it may extend to a century. Grant that any of them are wicked; they may squander the public money so as to ruin you, and yet this expression will give you no redress. I say they may ruin you; for where, sir, is the responsibility? The yeas and nays will show you nothing, unless they be fools as well as knaves; for, after having wickedly trampled on the rights of the people, they would act like fools indeed, were they to public[ize] and divulge their iniquity, when they have it equally in their power to suppress and conceal it. Where is the responsibility — that leading principle in the British government? In that government, a punishment certain and inevitable is provided; but in this, there is no real, actual punishment for the grossest mal-administration. They may go without punishment, though they commit the most outrageous violation on our immunities. That paper may tell me they will be punished. I ask, By what law? They must make the law, for there is no existing law to do it. What! will they make a law to punish themselves?

This, sir, is my great objection to the Constitution, that there is no true responsibility — and that the preservation of our liberty depends on the single chance of men being virtuous enough to make laws to punish themselves.

In the country from which we are descended, they have real and not imaginary responsibility; for their mal-administration has cost their heads to some of the most saucy geniuses that ever were. The Senate, by making treaties, may destroy your liberty and laws for want of responsibility. Two thirds of those that shall happen to be present, can, with the President, make treaties that shall be the supreme law of the land; they may make the most ruinous treaties; and yet there is no punishment for them. Whoever shows me a punishment provided for them will oblige me. So, sir, notwithstanding there are eight pillars, they want another. Where will they make another? I trust, sir, the exclusion of the evils wherewith this system is replete in its present form, will be made a condition precedent to its adoption by this or any other state. The transition, from a general unqualified admission to offices, to a consolidation of government, seems easy; for, though the American states are dissimilar in their structure, this will assimilate them. This, sir, is itself a strong consolidating feature, and is not one of the least dangerous in that system. Nine states are sufficient to establish this government over those nine. Imagine that nine have come into it. Virginia has certain scruples. Suppose she will, consequently, refuse to join with those states; may not she still continue in friendship and union with them? If she sends her annual requisitions in dollars, do you think their stomachs will be so squeamish as to refuse her dollars? Will they not accept her regiments? They would intimidate you into an inconsiderate adoption, and frighten you with ideal evils, and that the Union shall be dissolved. ‘Tis a bugbear, sir: the fact is, sir, that the eight adopting states can hardly stand on their own legs. Public fame tells us that the adopting states have already heart-burnings and animosity, and repent their precipitate hurry: this, sir, may occasion exceeding great mischief. When I reflect on these and many other circumstances, I must think those states will be found to be in confederacy with us. If we pay our quota of money annually, and furnish our ratable number of men, when necessary, I can see no danger from a rejection.

The history of Switzerland clearly proves that we might be in amicable alliance with those states without adopting this Constitution. Switzerland is a confederacy, consisting of dissimilar governments. This is an example which proves that governments of dissimilar structures may be confederated. That confederate republic has stood upwards of four hundred years; and, although several of the individual republics are democratic, and the rest aristocratic, no evil has resulted from this dissimilarity; for they have braved all the power of France and Germany during that long period. The Swiss spirit, sir, has kept them together; they have encountered and overcome immense difficulties with patience and fortitude. In the vicinity of powerful and ambitious monarchs, they have retained their independence, republican simplicity, and valor. [Here he makes a comparison of the people of that country and those of France, and makes a quotation from Addison illustrating the subject.] Look at the peasants of that country and of France; and mark the difference. You will find the condition of the former far more desirable and comfortable. No matter whether the people be great, splendid, and powerful, if they enjoy freedom. The Turkish Grand Signior, alongside of our President, would put us to disgrace; but we should be as abundantly consoled for this disgrace, when our citizens have been put in contrast with the Turkish slave. The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege. Show me the reason why the American Union is to be dissolved. Who are those eight adopting states? Are they averse to give us a little time to consider, before we conclude? Would such a disposition render a junction with them eligible; or is it the genius of that kind of government to precipitate people hastily into measures of the utmost importance, and grant no indulgence? If it be, sir, is it for us to accede to such a government? We have a right to have time to consider; we shall therefore insist upon it. Unless the government be amended, we can never accept it. The adopting states will doubtless accept our money and our regiments; and what is to be the consequence, if we are disunited? I believe it is yet doubtful, whether it is not proper to stand by a while, and see the effect of its adoption in other states. In forming a government, the utmost care should be taken to prevent its becoming oppressive; and this government is of such an intricate and complicated nature, that no man on this earth can know its real operation. The other states have no reason to think, from the antecedent conduct of Virginia, that she has any intention of seceding from the Union, or of being less active to support the general welfare. Would they not, therefore, acquiesce in our taking time to deliberate — deliberate whether the measure be not perilous, not only for us, but the adopting states?

Permit me, sir, to say, that a great majority of the people, even in the adopting states, are averse to this government. I believe I would be right to say, that they have been egregiously misled. Pennsylvania has, perhaps, been tricked into it. If the other states who have adopted it have not been tricked, still they were too much hurried into its adoption. There were very respectable minorities in several of them; and if reports be true, a clear majority of the people are averse to it. If we also accede, and it should prove grievous, the peace and prosperity of our country, which we all love, will be destroyed. This government has not the affection of the people at present. Should it be oppressive, their affections will be totally estranged from it; and, sir, you know that a government, without their affections, can neither be durable nor happy. I speak as one poor individual; but when I speak, I speak the language of thousands. But, sir, I mean not to breathe the spirit, nor utter the language, of secession.

I have trespassed so long on your patience, I am really concerned that I have something yet to say. The honorable member has said, we shall be properly represented. Remember, sir, that the number of our representatives is but ten, whereof six is a majority. Will those men be possessed of sufficient information? A particular knowledge of particular districts will not suffice. They must be well acquainted with agriculture, commerce, and a great variety of other matters throughout the continent; they must know not only the actual state of nations in Europe and America, the situations of their farmers, cottagers, and mechanics, but also the relative situations and intercourse of those nations. Virginia is as large as England. Our proportion of representatives is but ten men. In England they have five hundred and fifty-eight. The House of Commons, in England, numerous as they are, we are told, are bribed, and have bartered away the rights of their constituents: what, then, shall become of us? Will these few protect our rights? Will they be incorruptible? You say they will be better men than the English commoners. I say they will be infinitely worse men, because they are to be chosen blindfolded: their election (the term, as applied to their appointment, is inaccurate) will be an involuntary nomination, and not a choice.

I have, I fear, fatigued the committee; yet I have not said the one hundred thousandth part of what I have on my mind, and wish to impart. On this occasion, I conceived myself bound to attend strictly to the interest of the state, and I thought her dearest rights at stake. Having lived so long — been so much honored — my efforts, though small, are due to my country. I have found my mind hurried on, from subject to subject, on this very great occasion. We have been all out of order, from the gentleman who opened to-day to myself. I did not come prepared to speak, on so multifarious a subject, in so general a manner. I trust you will indulge me another time. Before you abandon the present system, I hope you will consider not only its defects, most maturely, but likewise those of that which you are to substitute for it. May you be fully apprized of the dangers of the latter, not by fatal experience, but by some abler advocate than I!

Virginia Bill of Rights June 12, 1776

A DECLARATION OF RIGHTS made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them, and their posterity, as the basis and foundation of government.

1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

3. That government is, or ought to be, instituted for the common benefit, protection, and security, of the people, nation, or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the publick weal.

4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of publick services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge, to be hereditary.

5. That the legislative and executive powers of the state should be separate and distinct from the judicative; and that the members of the two first may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.

6. That elections of members to serve as representatives of the people, in assembly, ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for publick uses without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the publick good.

7. That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

8. That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land, or the judgment of his peers.

9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

10. That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.

12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.

13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

14. That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.

15. That no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.

16. That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity, towards each other.

See also The Importance of Free Speech and The Free Press in America and the series on the Rights of American Citizens starting with RIGHTS OF AMERICAN CITIZENS: General Rights; Division One

The Importance of Free Speech and The Free Press in America

Infringed

When contemplating the liberties, freedoms and protections given by God and enumerated by the Constitution and Bill of Rights: Remember! The Free Exercise of Religion was the first to be mentioned by the Framers! The Freedom of the Press was meant to insure against the abuse of the government and those in power of all the other rights of man.

Remember also! When one right, liberty, or freedom is under attack, they are all under attack, when one is in jeopardy, they are all in jeopardy! The Second Amendment is meant to guarantee the First Amendment! 

The Importance of Free Speech and The Free Press in America

Background:

One of the most egregious breaches of the U.S. Constitution in history became federal law when Congress passes the Sedition Act, endangering liberty in the fragile new nation. While the United States engaged in naval hostilities with Revolutionary France, known as the Quasi-War, Alexander Hamilton and congressional Federalists took advantage of the public’s wartime fears and drafted and passed the Alien and Sedition Acts, without first consulting President John Adams.

President Adams never took advantage of his new found ability to deny rights to immigrants. However, the fourth act, the Sedition Act, was put into practice and became a black mark on the nation’s reputation. In direct violation of the Constitution’s guarantee of freedom of speech, the Sedition Act permitted the prosecution of individuals who voiced or printed what the government deemed to be malicious remarks about the president or government of the United States. Fourteen Republicans, mainly journalists, were prosecuted, and some imprisoned, under the act.

In opposition to the Alien and Sedition Acts, Thomas Jefferson and James Madison drafted the Virginia and Kentucky Resolves, declaring the acts to be a violation of the First and Tenth Amendments. President Adams, appalled at where Hamilton and the congressional Federalists were leading the country under the guise of wartime crisis, tried to end the undeclared war with France to undercut their efforts. He threatened to resign from the presidency and leave the Federalists with Republican Vice President Thomas Jefferson if they did not heed his call for peace. Adams succeeded in quashing Hamilton and the Federalists’ schemes, but ended any hope of his own re-election in the process.

The first of the laws was the Naturalization Act, passed by Congress on June 18. This act required that aliens be residents for 14 years instead of 5 years before they became eligible for U.S. citizenship.

Congress then passed the Alien Act on June 25, authorizing the President to deport aliens “dangerous to the peace and safety of the United States” during peacetime.

The third law, the Alien Enemies Act, was enacted by Congress on July 6. This act allowed the wartime arrest, imprisonment and deportation of any alien subject to an enemy power.

The last of the laws, the Sedition Act, passed on July 14 declared that any treasonable activity, including the publication of “any false, scandalous and malicious writing,” was a high misdemeanor, punishable by fine and imprisonment. By virtue of this legislation twenty-five men, most of them editors of Republican newspapers, were arrested and their newspapers forced to shut down.

One of the men arrested was Benjamin Franklin’s grandson, Benjamin Franklin Bache, editor of the Republican Aurora and General Advertiser. Charged with libeling President Adams, Bache’s arrest erupted in a public outcry against all of the Alien and Sedition Acts.

Many Americans questioned the constitutionality of these laws. Indeed, public opposition to the Alien and Sedition Acts was so great that they were in part responsible for the election of Thomas Jefferson, a Republican, to the presidency in 1800. Once in office, Jefferson pardoned all those convicted under the Sedition Act, while Congress restored all fines paid with interest. “

(See Text of Act(s) below)

Bill of RightsThe Argument against Unlimited Power in the Hands of the Federal Government!

One of the best arguments against these acts came from The Honorable Josephus Daniels in response to members George K. Taylor and Magill.

Daniels stated that the acts enumerated in the first section of the sedition law, as offences to be punished with heavy fines and long imprisonment, were “to combine or conspire together with intent to oppose any measure, or to impede the operation of any law of the United States;” or to intimidate any officer under the government of the same, from undertaking, performing, or executing his trust or duty; or to counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such counsel or advice had effect or not. The offences enumerated in the second section of said law, he said, were, “to write, print, utter, or publish, or to cause the same to be done, or to aid in writing, printing, uttering, or publishing, any false writings against the government, the president, or either house of the congress of the United States, with intent to defame the government, either house of congress, or the president, or to bring them, or either of them, into disrepute; or to excite against them, or either of them, the hatred of the people; or to excite any unlawful combination, for opposing any law, or act of the president of the United States, or to defeat any such law or act.” These were the provisions of the act. The provisions of the constitution were, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Third article of amendments to the constitution. He requested gentlemen to read the one and the other; to compare them, and reconcile them if possible. He was one of those who believed, that the first clause of the law would in its operation, effectually destroy the liberty of speech; and the second clause did most completely annihilate the freedom of the press. “To combine, conspire, counsel and advise together,” was a natural right of self-defense, belonging to the people; it could only be exercised by the use of speech; it was a right of self-defense [2nd Amendment force] against the tyranny and oppression of government; it ought to be exercised with great caution; and -never, but upon occasions of extreme necessity. Of this necessity, the people are the only judges. For if government could control this right; if government were the judge, when the necessity of exercising this right has arrived, the right never will be used; for government never will judge that the people ought to oppose its measures, however unjust, however tyrannical, and despotically oppressive. This right, although subject to abuse, like many other invaluable rights, was nevertheless essential to, and inseparable from, the liberties of the people. The warmest friend of any government would not contend that it was infallible. The best of governments may possibly change into tyranny and despotism. Measures may be adopted violating the constitution, and prostrating the rights and principles of the people. He hoped never to see the time; but, if it should so happen, no man would deny but that such measures ought to be opposed. But, he would ask, how they could be effectually opposed, without the people should “combine, conspire, counsel and advise” together? One man could do nothing. This right of adopting the only efficient plan of opposition to unconstitutional, oppressive and tyrannical measures, whenever they should occur, he hoped never would be given up. This right had been well exercised on a former occasion against England; and it would probably be well used again, if our liberties were sufficiently endangered, to call forth its exertion. But for the spirited and energetic exercise of this right; but for the “combining, conspiring, counseling and advising” together of the American people, these United States, now independent and free, would have remained under the tyrannical and despotic domination of the British king. It had been said, that this doctrine leads to anarchy and confusion; but, said Mr. Daniel, this doctrine gave birth and success to our revolution; secured our present liberty, and the privileges consequent thereupon. The contrary doctrine, said Mr. Daniel, leads to passive obedience and non-resistance, to tyranny and oppression, more certain, and more dangerous. If a measure was unpopular, and should give discontent, it would be discussed: if it should thereupon be found to be tolerable, it would be acquiesced in. If, on the contrary, measures should be adopted of such dangerous and destructive tendency, that they ought to be opposed; he would ask, how this could be done, but by the means which are forbidden in the first section of the law in question? These were the only means by which liberty, once trampled down by tyrants and despots, could be reinstated: and if the general government continued its rapid progress of violating the constitution, and infringing the liberties of the people, the time he feared was hastening on, when the people Would find it necessary again, to exercise this natural right of defense.

Mr. Daniel said, he would now turn his attention to that part of the law which affects the freedom of the press, in which the constitution was most palpably, and most dangerously infringed. On this subject, he said, the gentleman from Frederick had contended, that the constitution was not violated; that the common law was a part of the constitution; and that the offences enumerated in the act, were always punishable at common law. If this be the fact, said Mr. Daniel, the law in question is nugatory; and the clause of the constitution on this subject, which had been read, was of no effect, By the gentleman’s common law, which he had read, offences against the king and his government, were precisely such as were enumerated if offences in this law, against the president and government of the United States; substituting the word “president,” in the latter case, for the word “king,” in the former. These offences might be “by speaking, or writing against them; or wishing him (the king in England, and the president in America,) ill, giving out scandalous stories concerning them, (the king and his government in England, and the president and his government in America,) or doing anything, that may tend to lessen him (the king, or president, as the case may be) in the esteem of his subjects; weaken the government, or raise jealousies among the people.” JBlackstone’s Commentaries, page 123. When our “sedition law” was so like the law of England, he did not wonder that the gentleman had supposed that the law of England was in force here; one being the copy of the other, with the necessary change of names, and some other trivial circumstances; nor did he wonder that the gentleman should say, in conformity to that authority, that “the liberty of the press, properly understood, is by no means infringed or violated” by such regulations; “but consists in laying no previous restraints upon publications;” and is otherwise “licentiousness.” Blackstone, pa. 151, that a printer may publish what he pleases, but must answer the consequence, if a certain set of men shall adjudge his writings to contain “dangerous and licentious sentiments.” If this be true, he said, he would be glad to be informed, for what purpose was it declared by the constitution, that “the freedom of the press should not be restrained;” and how we were more free in the United States than the people of any other nation whatsoever? The most oppressed of Europe; the slaves and subjects of the most despotic power on the earth, he said, had the right to speak, write and print, whatever they pleased, but were liable to be punished afterwards, if they spoke, wrote or printed, anything that was offensive to the government: that there was very little difference as to the liberty of the press, whether the restraints imposed, were “previous” or subsequent to publications. If the press was subjected to a political licenser, the discretion of the printer would be taken away, and with it his responsibility; and nothing would be printed, but what was agreeable to the political opinions of a certain set of men; whereas subsequent restraints have the same operation, by saying, if you do “write, print, utter or publish,” anything contrary to the political opinions, reputation or principles of certain men, you shall be fined and imprisoned. In vain, he said, were we told that the accused may prove the truth of his writings or printing, and that we are only forbidden to write or print false facts. The truth was, that it was not the facts, but the deductions and conclusions drawn from certain facts, which would constitute the offence. If a man was to write and publish that the congress of the United States had passed the “alien and sedition acts,” that the provisions of the said acts were in these words, reciting the laws as they are, that the constitution was in these words, reciting the provisions of the constitution truly; and conclude, that the said acts violated the constitution; that the congress and the president, in enacting the same, had assumed powers not granted to them, and had encroached upon the liberties of the people, who ought to take measures “to defeat” these laws, and this “act of the president.” Here the facts stated, that the laws had been passed, and that the constitution was in terms stated, could be proved, and would not constitute the offence, but the inference from these facts, that the congress, in enacting the said laws, had violated the constitution, assumed powers not delegated to them, and usurped the rights and liberties of the people, in which usurpation the president had joined, would certainly have a tendency “to defame the government, the congress, and the president, and to bring them into disrepute and hatred among the people,” and would therefore constitute the offence. The inference or conclusion from certain facts might be true or not, and was mere matter of opinion. It was opinion then, political opinion, which was the real object of punishment. The deduction made from the facts just stated, he said, was in his opinion true, the consequence of which was, that the congress and president of the United States had not his confidence; with him they were in “disrepute.” But he could not prove that the opinion was true, as a fact; he could offer those reasons which convinced his mind of its truth, but they might not be satisfactory to a jury summoned with a special regard to their political opinions, or to a judge of the United States, most of whom had already pronounced their opinion on the subject, either in pamphlets, or political instead of legal charges to the grand juries of the several circuits of the United States; thus prejudging a constitutional question, which they knew would be made, if ever the law was attempted to be carried into effect.

He said he would state one more case to exemplify his opinion. If at the time of British oppressions, when the parliament of England boldly implied the right to make laws for, and to tax the American people, without representation, any man had by writing maintained that representation and taxation were inseparable, and that it was an usurpation and assumption of power by parliament to impose taxes on the American colonies, who were not represented in parliament, the fact here stated would not offend, because true; but the conclusion, the charge of usurpation, made upon the British government, would certainly have a tendency to bring it into “disrepute and hatred” among the people, as it did most effectually in America, and would have constituted the offence. This opinion, though now clearly admitted to be true, was then new, and could not be proven true to an English judge and jury, for they were so impressed with its falsity, that the nation undertook and carried on a bloody and expensive war, to correct its error. He concluded that the provisions of this act abridged and infringed the liberty of the press, which at the time of the adoption of the constitution had no other restraint than the responsibility of the author to the individual who might be injured by his writing or printing: that they destroyed all enquiry into political motives, silenced scrutiny, weakened the responsibility of public servants, and established political and executive infallibility. That the solicitude discovered by the government to defend itself against the attacks of its own citizens, was an evidence that its acts would not deserve their confidence and esteem: that the solicitude thus expressed by threats of fine and imprisonment, to keep the president for the time being from coming “into disrepute,” was evidence of a fear that a comparison of motives and views would prove favorable to his competitor, and was calculated to keep the real merits of competition out of view, inasmuch as the merits of one of the proposed candidates could not be insisted on to advantage, without exposing the demerits of the other, which would tend to bring him “into disrepute.” And if the one to whom the want of merit should be ascribed, should be president for the time being, thus to bring him into “disrepute,” would be to bring the person discussing the subject into the pains of fine and imprisonment.

It had been contended, said Mr. Daniel, by the gentleman from Frederick, that the adoption of the resolutions would be an infringement of the right of the people to petition. He, Mr. Daniel, would slate, that this right might be exercised by an individual, by an assemblage of individuals, or by the representatives of the people; which last mode was preferable, when the sovereignty of the state, as well as the appropriate rights of the people was attacked, as in the present case. He conceived, however, that the law in question had very much abridged the right of the people to petition and remonstrate. The necessity and propriety of petitions and remonstrance’s could not be seen but by discussion: the right itself could not be effectually used, without “counseling and advising together.” Three or more persons would constitute an “unlawful assembly;” for it would be easily said, that they were unlawfully assembled, when they intended, by discussing certain acts of the president, or laws of the government, “to defeat” the same, by inducing the people to petition and remonstrate; or if the same were not defeated, by virtue of such petition and remonstrance, to bring the government and president into “disrepute,” for continuing such acts and laws in operation, against which the people had petitioned and remonstrated. But those things being offences, and so enumerated in one clause of the law, an assembly of three or more persons, contemplating the objects just described, would be “unlawful,” within the purview of the act, and subject to fine and imprisonment. Again, he said, the dangerous and ruinous tendency of certain measures, might not be observed by the people of any particular district. A few, however, might wish a petition to be made, to remove the grievance of the measures; in order to which, they would individually address the district by writing, in which they would expose and censure the evil tendency of the said measures, to excite the people to petition and remonstrate, “to defeat” the same, or necessarily to bring the friends of the continuance thereof into “disrepute.” This would be an offence within the purview of the second clause of the law. Thus, said he, by one act we have seen, that that clause of the constitution, which secures the right of speech, of the press, of petition, of the free exercise of religious opinion to the people, is prostrated in every respect, except as it relates to religion. And this last and most invaluable right, he had no doubt would soon be invaded, inasmuch as he had been informed, that the friends of the present measures had already begun to insinuate, that an “established church was one of the strongest props to government:” and inasmuch, that the same reasons might be urged in its favor, as in favor of the abridgment of the liberty of the press. But it was said, that the press was still left free to print truth: “its licentiousness and abuse” are only forbid. So it might be said of religion: true religion only ought to be tolerated: the abuse of religion ought to be forbidden: the “licentiousness” of particular sectaries ought to be restrained.

He said, he was fearful that he had already trespassed upon the patience of the committee, and he would hasten to a conclusion, with a few remarks on the particular shape and address of the resolutions. It had been objected by gentlemen, that it was going too far to declare the acts in question, to be “no law, null, void and of no effect:” that it was sufficient to say they were unconstitutional. He said, if they were unconstitutional, it followed necessarily that they were “not law, but null, void and of no effect.” But, if those particular words were offensive to gentlemen he had no objection to any modification, so the principle were retained. As to the objection, that they were improperly addressed to the other states, Mr. Daniel said, he supposed that this mode was extremely eligible. If the other states think with this, that the laws are unconstitutional, the laws will be repealed, and the constitutional question will be settled by this declaration of a majority of the states: thereby destroying the force of this precedent, and precluding from any future congress, who might be disposed to carry the principle to a more pernicious and ruinous extent, the force of any argument which might be derived from these laws. If, on the contrary, a sufficient majority of the states should declare their opinion, that the constitution gave congress authority to pass these laws, the constitutional question would still be settled; but an attempt might be made so to amend the constitution, as to take from congress this authority, which in our opinion was so pernicious and dangerous.

He then concluded by saying, that something must be done: the people were not satisfied: they expected that this legislature would adopt some measure on this subject: that the constitution of the United States was the basis of public tranquility; the pledge of the sovereignty of the states, and of the liberties of the people. But, said he, this basis of public tranquility, this pledge of liberty and security is but a name, a mere phantom, unless it be strictly observed. It became our duty to watch attentively, to see that it was not violated; to see that it was equally observed by those who govern, and by those who are destined to obey. To attack the constitution was an offence against society; and if those guilty of it were invested with authority, they added to the offence a perfidious abuse of the power with which they were entrusted. It was our duty, said he, to suppress this abuse with our utmost vigor and vigilance. It was strange to see a free constitution openly and boldly attacked by those who were put in power under it. It was generally by silent and slow attacks, that free governments had progressively changed, till very little of their original texture and principles remained: that the doctrine of implication had introduced innovations, under the influence and operation of which, the freest governments had been enslaved. It was our duty to guard against innovations. The people of Virginia had been attentive to this subject. The petitions and remonstrances, which had been read to the committee, proved that the people were seriously alarmed at the innovations of the federal government. He said they proved more: they proved that the people thought that their servants, in the administration of the federal government, were not even modest enough to wait the increase of their power by progressive change. That their ambition exceeded the resources of the doctrine of implication: that their thirst of power could not be satiated, but by a direct attack upon the constitution, and a prostration of the great rights of the people. He said, this apprehension of the people, which he thought just, would be satisfied. He thought the mode proposed by the resolutions was most likely to effect this purpose; as well as other important purposes. He said, if they who were the representatives of the people, would not act for them when called upon, the people will speak for themselves; and as the voice of God, they would be heard. He hoped this final and dreadful appeal would never be necessary. He preferred the resolutions, and hoped they would be adopted by the committee. ..

Related: The Sedition Act of 1918 signed into law by Progressive President Thomas Woodrow Wilson

During World War I, libel laws surfaced again. The Sedition Act of 1918was part of an amendment to the Espionage Act, created in 1917 to prohibit “false statements” that might “impede military success.”

The revisions prohibited not only public criticism of the government, but also forbade “any abusive language about … the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy.”

It extended further to target any person who displayed the flag of an enemy country, or attempted to curb the production of goods needed for war. Both the Espionage Act and Sedition Act were repealed in 1921.

Because the Sedition Acts of 1798 and 1918 were each in effect only for three years, neither was ever challenged in the U.S. Supreme Court. In the 1964 case of New York Times Co. v. Sullivan, the Supreme Court ruled that the First Amendment prevented a public official from charging a fine for libel, “unless �actual malice’—knowledge that statements are false or in reckless disregard of the truth—is alleged and proved.”

The Court took this opportunity to officially declare the Sedition Act of 1798, which had expired over 150 years earlier, unconstitutional: “the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.”

Justice William Brennan quoted James Madison, stating, “The censorial power is in the people over the Government, and not in the Government over the people.”

Text of Act(s)

An act in addition to the act entitled, “An act for the punishment of certain crimes against the United States.”

[Approved July 14, 1798.]

ABSTRACT.

SECTION I. Punishes combinations against United States government.

1. Definition of offence:
Unlawfully to combine or conspire together to oppose any measure of the government of the United States, &c. This section was not complained of.

2. Grade of offence:
A high misdemeanour.

3. Punishment:
Fine not exceeding $5000, and imprisonment six months to five years.

SECTION II. Punishes seditious writings.
1. Definition of offence:

To write, print, utter or publish, or cause it to be done, or assist in it, any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States, or to stir up sedition, or to excite unlawful combinations against the government, or to resist it, or to aid or encourage hostile designs of foreign nations.

2. Grade of offence:
A misdemeanour.
3. Punishment:
Fine not exceeding $2000, and imprisonment not exceeding two years.

SECTION III. Allows accused to give in evidence the truth of the matter charged as libellous.

SECTION IV. Continues the Act to 3d March, 1801.


SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled. That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing, or executing his trust or duty: and if any person or persons, with intent as aforesaid, shall counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanour, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term of not less than six months, nor exceeding five years; and further, at the discretion of the court, may be holden to find sureties for his good behaviour, in such sum, and for such time, as the said court may direct.

SECT. 2. And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States; or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States; or to resist, oppose, or defeat any such law or act; or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

SECT. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases.

SECT. 4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer: Provided, That the expiration of the act shall not prevent or defeat a prosecution and punishment of any offence against the law, during the time it shall be in force.

See also:
Constitution of the United States and it’s Governmental Operations (In Plain English)
The Importance of the Freedom of the Press; by Senator Ebenezer Mack (1791-1849)
THE LIBERTY OF THE PRESS by Charles F. Partington 1836
George Mason of Virginia the Father of the Declaration of Independence
A REPUBLIC! A LIVING BREATHING CONSTITUTION DEFINED! by Alphonse De Lamartine 1790-1869
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights by officers of the government
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
Sources:
1. http://www.history.com
2. http://www.earlyamerica.com/earlyamerica/milestones/sedition/
3. “Resolutions of Virginia and Kentucky” by James Madison, Thomas Jefferson
4. http://www.constitution.org/rf/sedition_1798.htm

RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

bill-of-rightsThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

PART II; OF SOME PARTICULAR RIGHTS

CHAPTER VII: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.

InfringedUnder a frame of government voluntarily adopted by the people;—under laws for the protection of the rights of the citizens, enacted by legislators of their own choice, and executed by public officers, whose offices, either directly or indirectly, depend also upon the choice of the people, and who, at any rate are responsible to them for any neglect of duty or other official malversation [misconduct in public office], it would be incongruous to suppose, that any of the civil or political rights of the citizens could be infringed by the public officers themselves, either with impunity to the transgressor, or without ample means of obtaining adequate redress to the injured party. And, it is true, that the people of the United States, in the frame of the General Government, as also in those of the respective state governments, have endeavored to make ample provision against such evils, by defining, with as much precision as the nature of the case would admit, the duties of all the public offices, which they have thought fit to create, and by restricting the powers of the officers, to such only as are absolutely necessary to the faithful and effectual discharge of those duties. This remark applies equally to the highest, as well as to the humblest offices and officers in the government. Within the limits of their respective powers, all officers, from the President of the United States, downwards, ought to be submitted to and obeyed; but, if they should overstep the limits of their official authority;—if they should usurp powers not delegated to them by the constitution, or by some law made in pursuance of it, they would cease to be under the protection of their offices, and would be recognized merely as private citizens; and, for any act of injustice or oppression which they might commit, would be liable to a civil or criminal prosecution, in the same manner as a private citizen; with this distinction, that if the wrongdoer has availed himself of his official character, or, of the opportunities which his office affords him, to commit acts of injustice or oppression, it will be considered as a great aggravation of his guilt, in a criminal prosecution, and will be a ground for the jury to find exemplary damages, in a civil action. Because, private injury is here connected with an abuse of the public confidence.

So far as the subject of the present chapter is concerned, such is believed to be the true intention, and theory of the Federal Government, as well as of that of each of the states. And where the wrongdoer is a public officer, to whose office the exercise of political power is not attached, there can seldom be any difficulty in obtaining redress for any wrong done by him. A resort to the tribunals of justice, either of the states, or of the United States, according to circumstances, will usually be sufficient for this purpose.

JudicialActivismCases however are occurring frequently, in some of which the means of redress are not sufficiently easy, or do not seem adequate to the purposes of justice, and, in others, which however it is a consolation to think are much more rare, it seems difficult to say with certainty in what manner and to what extent, a person injured, may find a remedy for the wrong which he suffers.

1. Suppose one of the states should enact an unconstitutional law, forbidding under very heavy penalties an act which, before the enactment of the law, was entirely innocent; suppose that a citizen of another state should happen to be the victim of such law, being apprehended within the territory of the former state, and violating such unconstitutional law, and tried, sentenced, and imprisoned under it; this, without question,would be a great hardship upon him: but what remedy can he have? It may be answered here, that, according to the true theory of the federal system, there should be no difficulty at all in this case; because, in the first place, the judges of the state court before whom such prisoner would be brought for trial, would have full authority as well as a perfect right, to decide the law to be unconstitutional, if they thought so, and to discharge the prisoner. But, if the same considerations which induced the legislature of such state to enact the law, or any others, should induce the judges of the court to decide, that the law was constitutional, the prisoner would have a right to bring his case before the Supreme Court of the United States, by a writ of error, and the judges of that court, if they considered the law .unconstitutional, would reverse the decision of the State Court and would issue a mandamus accordingly. If the State Court disregarded the decision or mandate of the Supreme Court of the United States, and, on a second writ of error, that court should attempt to execute its own decree and the execution of it should be resisted by the State Government, and the marshal of the district should be unable to raise a sufficient force to release the prisoner,—it would then become the duty of the president to interpose; because the constitution of the United States makes it his duty ‘to take care that the laws are faithfully executed.’ If he should omit to do this, he would violate his oath. If the president should avow the doctrine, that a president is under no obligation to execute any law, which he does not think constitutional, and should declare that he did not think such decision to be so, and therefore should not assist in executing it, it would seem to be a great usurpation of power; because, under this pretense he might refuse to execute any law, which did not please him, even though it were sanctioned by the votes of two thirds of the senate and house of representatives. In any such case, he might well be impeached for neglect of duty, from whatever cause it might arise; because, it would become useless for congress to enact laws, if the president would not do his duty in the execution of them, where it required a greater power for that purpose than the marshal could raise. This is the very case particularly contemplated in the constitution, where it requires the president to take care that the laws are faithfully executed. If however a majority of the house of representatives would not agree to an impeachment, the subject must be left to the decision of the people at the next election for president; and, if he should then be re-elected, his doctrine would be sanctioned, and the effect of it would be, to alter the frame of government from a republic to an elective monarchy, the term of office being four years, renewable at the will of the people. The president would then virtually have an unqualified veto upon all laws; because, no state could be compelled to submit to any law, which was passed without the president’s sanction, though by two thirds of congress. Such an unqualified veto is a greater power, than any but kings pretend to claim, and would render the provisions of the constitution on this subject useless. In fact the constitution would become like some ill-contrived instrument, which has strength enough to overcome inconsiderable obstacles, but, when opposed to any weighty ones, flies off the handle. Rational liberty and good order, under a government of laws, would then become a mere farce; and is there not danger, that it might be followed, in the inverse order of theatrical representations, by the tragedy of revolution, anarchy, and military despotism?

Judicial ActivismA case, where the citizens of one or more of the states should be oppressed by an unconstitutional law of another state, after the Supreme Court of the United States had decided such law to be unconstitutional, one would naturally suppose to be too improbable to deserve a moment’s consideration; since, in general, it is matter of boast, that, in no country in the world, are the rights of the citizens better protected than in the United States. Yet, in what respect does this imaginary case differ from that of the two American citizens now imprisoned in the state of Georgia? These citizens, at the time of the passage of the unconstitutional law alluded to, were residing within the Cherokee Territory; and because they continued to reside there without complying with the requirements of a certain act of the state of Georgia, which the Supreme Court has decided to be unconstitutional, they are sentenced to hard labor in the penitentiary, or state prison, of that state, for four years; and notwithstanding such decision of the Supreme Court, they are still detained in ‘durance vile,’ among malefactors and felons. This seems to be a case of peculiar hardship upon these citizens. For, they depended on the laws and constitution of the United States for protection, and have committed no crime; yet they are not protected. It seems singular, that though Congress was in session when the decree of the Supreme Court of the United States was pronounced, and received notice that the decree would not be obeyed, and knew, that, owing to the adjournment of the Supreme Court, which sits only once a year, these persons can have no relief by the intervention of that court, until the next session, yet they did not adopt any measures to procure the release of these persons from imprisonment. It seems singular, too, that though Congress must be aware of the intention of the state of Georgia, not to obey the decree, nor to suffer it to be executed by the Supreme Court, which, having no political power, in all probability will not be able of itself to execute its own decree in this case,, should have adjourned without coming to any resolution on a subject, in which the honor of the United States seems concerned. It is true, some may imagine, that, by this delay, a collision with the state of Georgia may probably be avoided, because, it is not improbable, that the hardships of imprisonment, might induce the prisoners to make concessions, and petition for their pardon and release. But, if they should adopt this course, and should actually be pardoned upon their submission, it would stamp indelible disgrace upon the Union; because it would then be apparent, that though they were citizens of the United States, and had committed no crime, yet the government either could not or would not protect them; and, besides being unjustly punished, these persons would be obliged to succumb to their oppressors, in order to obtain their release before the whole term of their imprisonment expires. A temporizing policy is sometimes prudent, wise and humane, but never can be honorable when it is at the expense of an injured person, who is suffering imprisonment, disgrace, ignominy, and other hardships, by the delay.

2. Another class of cases, but of a totally different kind, in which injury may be inflicted by persons in authority, and where the remedy is not always so easy, as it is desirable it should be, is where a military commander avails himself of the force under his command, and the discipline of the camp, and the habits of implicit obedience of his troops, to commit acts of oppression upon the citizens. Such oppression may be practiced in a great variety of ways; as, by seizing upon supplies without necessity, and in an arbitrary manner not warranted by law; by quartering his troops upon the people in a manner, which the law does not permit; by not restraining his troops from ill-treating the people, and committing gross irregularities or excesses among them; by abusing the power, which the force under him, enables him to exercise, by declaring and enforcing martial law, to the disturbance of the jurisdiction of the civil tribunals, and to the oppression of the citizens, without any legal authority whatever; by arresting and imprisoning or sending away the citizens, without any justifiable cause. Recruiting officers also, sometimes, are guilty of oppressive acts in the fraudulent enlistment of persons under age, and by taking an unfair advantage of persons, whom they have found in a state of intoxication, or have entrapped into it. In most, if not all of these cases, the law provides a remedy, but it is not always effectual; for, the military commander will sometimes set the process of the courts at defiance, at least for a time, by means of the force under his command. Besides, the remedy is not sufficiently speedy, being designed rather to give damages, or to punish for an injury, than to interpose, and prevent its infliction or continuance. Acts of oppression are also sometimes committed by courtsmartial, either from a mistake of their proper jurisdiction, or some other less excusable motive. In any such case, however, the sentence of the court will be no protection to the officer who executes it, but the court and the officers will all be trespassers, and an action may be maintained against them as such. See Cranch, 330.

But there is reason to apprehend, that persons not liable to be tried by martial law, may sometimes be punished, and even capitally, by the sentence of a court-martial, which has no legal authority. In this case what is to be done? In Dec. 16,4814, General Jackson proclaimed martial law at New Orleans, and expressed his determination rigidly to enforce the articles of war. The effect of any such illegal measure would naturally be, to make the private citizens, who neither belonged to the army nor were embodied in the drafted militia, liable to be tried by a court-martial, and in some cases punished capitally for offenses against a law, designed only for the regular army and the militia in actual service. See also the case of Stacey, Infra.

3. Another class of cases, where the citizens might be oppressed, without having any sufficient, prompt remedy, redress or reparation, would result from an oppressive exercise of the power of committing for contempts, by either house of congress, or of the state legislatures; or, by any of the tribunals of justice.

So far as it relates to contempts of court, offered by persons, who are neither officers of court, suitors nor witnesses, and committed out of the presence of the court, there does not seem to be any settled law, in the courts of common law. It would be well, if any such power were disclaimed by the courts, so that the statute of the United States might be considered as declaratory of the law recognized in the state courts, on this subject; and, in case any act were committed, tending to bring the administration of justice into contempt, the guilty person were proceeded against by way of indictment for misdemeanor.

With regard to witnesses, as the law is settled, that the court may commit to prison, any witness who refuses to testify or to answer what the court consider a legal question; and, as different judges may and do entertain very different opinions as to the legality of the same questions; and, if a witness should be thus compelled to answer a question, which in fact is illegal, it does not appear how he can avoid the ill consequences which may arise,—it might not be amiss to make some legislative provision on the subject, so that the law may be certain, and as little as possible left to the discretion of the presiding judge.

For an abuse of the power of committing for a contempt, by a court of competent jurisdiction, however arbitrary, and oppressive in its effects, it does not appear, that a party injured can have any redress, unless express malice can be proved, and the total want of probable cause or legal grounds for the commitment. The justices of inferior tribunals indeed may be indicted for such oppression, and there seems to be no sufficient reason, why those of the superior courts should not be liable to similar prosecutions, in case of express malice and gross abuse of power. But the judges of courts in general are not to be called to account for what they do, acting judicially within their jurisdictions, however incorrect and mistaken their opinions may be. In the case of Charles Knowles, who was indicted before the King’s bench for murder, he pleaded that he was Earl of Banbury. The attorney general, replied that he had on a former occasion claimed the privilege of peerage before the house of peers, but they had dismissed his petition. The defendant demurred, and the court sustained the demurrer and quashed the indictment. This was considered as an infringement of the privileges of the house of lords. Ch. Jus. Holt, being called before the house of lords, and desired to give an account of the reasons of the proceedings of the court in that case, answered: ‘I gave judgment as it appears on the record. It would be submitting to an arraignment for having given judgment, if I gave any reasons here. I gave my reasons in another place at large.—

‘I am not to be arraigned in any way for what I do judicially. The judgment may be arraigned in a proper method, by writ of error. I might answer, if I would, but I think it safest for me to keep myself under the protection the law has given me. I look upon this as an arraignment; I insist, if I am arraigned, I ought not to answer.’ 12 St. Fr. 1179.

But an abuse of the power of committing for contempts, may be the ground of an impeachment. This subject was much discussed in the impeachment of Judge Peck; and it was thought expedient to declare the law on the subject, by statute. See ante, p. 240. It may not be amiss to remark here, that the courts, both in England and in this country, claim and exercise the power of suspending attorneys and counselors, from practice in their courts, either for professional misbehavior, or for gross contempts. An alleged abuse of this power, was one of the grounds of impeachment in the case of Judge Peck. How far the courts have a power to suspend counselors from practice, for a contempt, in those states where the people, by statute law, have a right to appoint whom they please, to prosecute and defend for them, by a special power of attorney, does not seem clear. It seems doubtful, whether the court can deprive the people of their statute privilege in this respect, by any mere act of their own, even though the contempt should be so gross as to deserve fine and imprisonment. In the trial of John P. Zenger, a printer of New York, in the year 1735, for a libel against the government, his counsel, James Alexander and William Smith, excepted to the power of the Ch. Justice, James de Lancey, to sit in the cause, on account of alleged informality in his commission, in various respects, especially, because it was granted, during the king’s pleasure, instead of during good behavior. The court intimated to them what they intended should be the consequences of making such exceptions, but they persisted in filing them; the court then immediately struck them off the roll of attorneys and excluded them from their whole practice as attorneys and counselors, and would not even suffer them to take minutes of the trial in writing. This was an unwarrantable abuse of power, against men, who had done nothing. more than urge an embarrassing exception to the validity of the Ch. Justice’s commission.(fn1)

But on this subject, further remarks are superfluous, as it is believed, few cases will ever arise, which will make it necessary to draw any lines, more distinct than those, which seem to be understood and observed throughout the courts of the United States; as well as those of the respective states; viz. friendly indulgence on the part of the court, and respectful consideration on the part of the bar.

With regard to the remedy, if either house of congress, or, the senate or house of representatives or delegates of either of the states, should oppress a private citizen, by committing him to prison under pretext of a contempt, when he had been guilty of none, and perhaps in fact had done nothing more than exercise his legal right, the law does not seem settled. See ante p. 248, Sic. In England, the law in general seems clear, that either house of parliament has the exclusive cognizance of its own privileges, and consequently of all contempts against itself; so that, whatever the opinion of the court of king’s bench may be on the subject, the judges have no power to discharge the person in contempt, from imprisonment. See infra, under habeas corpus. A few remarks have already been made on this subject in a different connexion.

See ante, p. 240, &c., in which it is contended, that no such unlimited power is possessed by either house of congress, and whether the legislature of any particular state, or either branch of it, possesses such power, must depend upon the proper construction of the constitution of such state. If a case of oppression by the abuse or usurpation of such power, by either house of congress, should ever arise, it would be most agreeable to the spirit of the federal constitution, to consider the supreme court as having full power to decide according to the constitution, the law, and natural right, and consequently having authority to discharge the prisoner from his illegal and unconstitutional imprisonment. For, the analogy between the relations existing between the court of king’s bench and parliament, in England on one side; and between the supreme court of the United States and congress, on the other, does not hold good in all particulars. The difference is, that the court of king’s bench is an inferior court, not only to the high court of parliament, but to each of the houses of parliament, when sitting as a court, for the decision of questions in relation to its own privileges, in which case, it is a court of record. But the supreme court of the United States, is the highest tribunal, acknowledged by the constitution, for the decision of constitutional questions, and cannot be controlled by congress in any other way, than by altering the law, for the time to come, by legislative acts made agreeably to the constitution. The right of defining their own privileges, therefore ought to be exercised by statutes. The liberties of the citizens would then be secure, because both houses of congress must concur to enact a law, and it must have the sanction of the president. Even then, however, it must be agreeable to the constitution, or it will be void; and the supreme court of the United States has jurisdiction to determine it to be so. But, if each house of congress has the power to determine its own privileges, whenever a case arises, without any previous law, by a decision, which, whether constitutional or not, must be submitted to without a right to appeal to the supreme court, then such declaration of their rights by one of the houses of congress, and without the ratification of the other, or the president’s signature, will have more power than a statute of the United States, regularly enacted by both houses of congress, and ratified by the president. Besides, if congress, or either house, have such an unqualified ‘power of declaring their own privileges, and of .punishing for contempts, without revision by another tribunal, then they are in effect above law, and consequently without law, and possess the omnipotence, as it is called, of the British parliament. The consequence may be, that, under the specious pretext of punishing for contempts, which in fact may only be committed in resisting usurped and unconstitutional privileges, they may destroy the freedom of the press, and with that, every other civil and political right, by oppressing all those, who venture to exercise such rights, in an unacceptable manner. The same arguments apply by way of analogy, to the legislatures of the states, and the supreme courts of such states, respectively. In this way, by considering such courts as having authority to examine into the nature of the contempts alleged as causes of commitment, and to discharge the prisoner, when the causes are insufficient, there will remain no room for the practice of oppression, against which there can be no remedy. See further on this subject Infra; in this chapter.

4. From the government itself, though bound to show a parental regard to the rights and interests of the people, the protection of which is the principal ground of its establishment, individuals or certain classes of the citizens, sometimes suffer, what they feel to be a hardship, but, which coming from their rulers, they are unwilling to think an act of absolute injustice. This is seldom done by the direct infliction of wrong; but, when it happens, most usually consists in delaying the hearing, allowance or adjustment of the claims of the citizens, either of which must be considered a denial of right. Those American merchants who have claims for spoliations, committed by France previous to 1800, in satisfaction of which, when proved in the manner stipulated in the conventions made between France and the United States, the French government agreed, that a sum not exceeding twenty millions of francs, might be reserved by the government of the United States, out of the purchase money to be paid for the purchase of Louisiana, but which claims have not yet been settled, consider themselves as suffering a hardship of this kind. From the lapse of time, many of those merchants, whose property was thus confiscated or condemned by France, have now deceased. In the same way, probably, has resulted the loss of many of their documents and papers; so that the establishment of their claims becomes every day more difficult. The families of some of these claimants, also, are reduced to indigence; and, though the government will probably soon be compelled to reduce its revenue, for want of some constitutional mode of expenditure, yet these claims are not paid or allowed, and indeed have never been heard any further than by petition and remonstrance, not finally acted upon.

This delay occasions another hardship to these claimants in this, that so many political generations of members of congress have succeeded each other, during the interval between the convention with France and the present day, that those, who are now members, do not seem so well acquainted with the equity of these claims, and do not seem to feel so much sympathy for the claimants, as might naturally be expected. For, a certain member, it is said, has expressed an opinion, that he should not vote that the whole of these claims be allowed. Why not? Is this sound doctrine? It cannot be supposed, that he meant, that the merchants should be allowed no more than they furnished reasonable evidence to prove. For, that is the whole of what they claim. But, after the claim is proved, what distinction can be made between the part to be allowed, and the part to be rejected? The rule must be to pay so much as is satisfactorily proved, and no more. For, congress has no right, either to bestow money upon the merchants on a groundless claim, or to withhold any part of what is justly due to them. It is hoped, that no member of congress, can have so degrading an opinion of his constituents, as to suppose, that the allowance of the whole of a just claim can be unpopular with them; for what is this, but to suppose, that they are actuated by the low envy, which illiberal minds are prone to indulge, at seeing a large sum paid to others, though it is justly their due? For, a disapprobation of the allowance of any just claim, can be imputed to no better motive.

5. It may not be amiss to remark, though in strictness it does not fall within the subject of this chapter, that the peaceable citizens do not always seem to have adequate protection against the disorders and outrages of mobs and rioters. There is hardly a year passes, that complaints are not made, in some place or other within the United States, of injuries done to the property of individuals by disorderly assemblies of ignorant and profligate persons. It is true, they sometimes are actuated by a desire to reform abuses, to remove nuisances, to right the injured, and to punish wrong doers; but, notwithstanding these chivalric intentions, their proceedings, which are nothing better than acts of violence and disorder, are not only illegal but highly criminal. For, the law has provided a regular course of proceedings for the correction and reform of all abuses, and has appointed police officers both capable and trustworthy, who will perform all such duties in a regular and proper manner; so that there is never any occasion for the assistance of mobs, which are proverbially cruel, faithless, rash and cowardly. Those persons, who are fond of acting in their own person, though without a legal warrant, in the reform of abuses by summary process, should be informed, that as their conduct is unlawful, if any person should unfortunately be killed in resisting their acts, it will be murder, not only in the immediate killer, but in all who have assembled with a design to carry their attempts into execution, by force. For, the rule of law is settled,’that if two, three or more are doing an unlawful act, as abusing the passengers in a street or highway, and one of them kills a passenger, it is murder, in all.’ See the opinion of Ch. Jus. Holt, 12 Mod. 156. For the same reason, when Ld. Dacres and some others, went into a park to hunt, and agreed to kill all that should resist them, and one of them in the absence of Ld. Dacres, and when he was a quarter of a mile off, killed a person who asked him ‘what business he had there,’ it was adjudged murder, in all; and Ld. Dacres was hanged. Kelyngs’ R. 87.

There is frequently too great indulgence shown by the magistrates to tumultuous assemblies of profligate persons. To suppress them, at once, on the first appearance of disorder and irregularity, by arresting their ringleaders, and, where necessary, by exhibiting to them a force which they dare not look in the face, is the best policy; because it is not only a decisive step, but it is also the most humane that can be adopted. For, mobs and rioters are almost always encouraged in their outrages, by the forbearance of the police, which they generally ascribe to timidity. And thus the magistrates, who perhaps, at the beginning of the tumult, thought it too harsh a measure, to send a disorderly individual to prison, have afterwards been compelled, in self-defence, to shed his blood, and perhaps that of others beside.

Such disturbances of the public peace, perhaps may sometimes be ascribed in part to the prevailing influence of erroneous opinions; and because, according to the democratic theory, the supreme power in the last resort, belongs to the people, an assembly of ignorant and profligate persons, under pretence of being the people, will think themselves justified in whatever excesses or outrages they may commit. It is probably from the supposed toleration and impunity of such licentiousness, that Democracy is so great a favorite with such persons. But no regular government can be safe for a moment, if those who entertain such erroneous notions, and bad principles, should ever obtain a commanding influence in society, whether through the force of terror or delusion. Cataline, Caesar Borgia, Masaniello, Jack Cade, fee. are the only ones, who can expect to be popular with disorderly persons of such principles, and, if not put down in season, society must suffer the horrors of revolution and anarchy.

But, in fact, even the magistrates themselves seem sometimes to labor under the delusion, that a multitude of disorderly and riotous persons are the people, and therefore are not to be restrained in any excesses or breaches of social order, that do not amount to enormous outrage. But in fact, such persons are not the people, and have no greater claim to that appellation, than an equal number of convicts from the state prison. For, the convicts are punished for violations of social order, committed individually, and for the most part, in secret. And such flagitious persons are actuated by the same motives, but they are more dangerous, because they act in greater numbers, and set the regulations of society at open defiance.

In order to ascertain, who are the people, it is only necessary to consider by whom are the constitutions of society established —under whose authority laws are enacted. The legislators and magistrates are the ministers of the people; and the laws are enacted by persons chosen by the people. The laws and constitution are therefore the declared will of the people, and those persons who oppose either the laws, the constitution, or the magistrates, whether such persons are demagogues, or whether they are the ignorant or profligate attendants upon demagogues, are the enemies of the people, and disturbers of the public peace. But, if such persons were the people, indeed, and the sovereign power were lodged in their hands, then of all governments, democracy would be the most arbitrary and tyrannical, and, at the same time the most degraded and base.

As individuals who are injured in their persons or property, by unlawful assemblies of rioters, frequently are unable to obtain any redress, because of the disguises which are used on such occasions, it would be good policy to give them a remedy by action, against the town in which the outrages are committed, for the full amount of damages sustained, and to let the towns have a remedy over against the rioters. This responsibility for the misbehavior of others, would induce the orderly and peaceable inhabitants of towns, to provide an efficient police, that would put an immediate stop to every species of tumultuous assembly or riot, before it had time to commit any serious injury.

Of the privilege of the writ of Habeas Corpus. The great security of the citizens against unlawful imprisonment, is the process of habeas corpus. This writ is a writ of right, which any individual held in confinement, without a legal warrant, has a right to demand, for sufficient cause shown, verified by affidavit. The issuing of it, is regulated by Statute Law; and it may usually be had in vacation, from any of the justices of the superior state courts, or, where the imprisonment is under colour of the authority of the United States, or, of some of the courts of the United States, the writ of habeas corpus may be issued by the Supreme Court of the United States, or, in vacation, by one of the justices of such court. But this writ is not a writ of course; for, the court will not grant it except for probable cause, verified by affidavit. See 3 B. and Al. 420. Nor will they grant it in any case, where they perceive beforehand, that the person if brought up, must be remanded. Ibid. See also 3 Peters, 200. The writ will be issued, either at the motion of the party imprisoned, or at the request of any person, who has a right to the custody of such party; as, a father may have this writ for his son, who is a minor; a husband may have this writ for his wife; a guardian, for his ward; a master, for his apprentice. &c. See 1 Cook, 143. Where a woman is ill treated by her husband, or improperly confined, the court will grant a habeas corpus, and if she swears the peace against him, she will not be put in his custody again, nor will he be suffered to take her. 2 Bur. 1115. And, generally, where a person is discharged on habeas corpus, he is of course entitled to protection on his return. 1 Win. Bl. 410.

The wrk is directed to any person, whether an officer or a private individual, who has another in his custody, or under his control. Godb. 44. And the return to the writ must be made by that person.

The prisoner is usually brought in, with a return in writing, containing the causes of commitment or detention. Sometimes however, the writ is returned without bringing in the body, but the causes of commitment are assigned. In the former case, if the causes of detention are not sufficient, the prisoner will be discharged. In the latter case, if the reasons of commitment are insufficient, and no good excuse is assigned for not bringing in the body, the court may at discretion award an alias habeas corpus, or issue an attachment against the person so detaining the prisoner in unlawful confinement. See 5 T. R. 89. Sal. 350. The court will also grant an attachment against any gaoler, who uses a prisoner barbarously or inhumanly. 6 Mo. 137.

If the prisoner is too weak to be brought in, the court will direct all persons interested, as relations, servants, physicians, &tc. to have access to him; but not mere strangers. 2 Bur. 1099.

The object of the writ of habeas corpus being the liberation of such persons, as are imprisoned without sufficient cause, persons committed for treason or felony plainly expressed in the warrant of commitment, as also persons convicted or in execution, are not entitled to the benefit of this writ from the Supreme Court of the United States. Ex parte Tobias Watkins, 3 Pet. 203. The rule is presumed to be the same in most of the state courts. But, with regard to the power of the state courts to interfere, where there has been an abuse of an authority given by the United States, the decisions in state courts have not been uniform. In New York, a habeas corpus to bring up a soldier enlisted in the army of the United States, was refused. 1 Johns. Cas. 137. In the matter of Ferguson, Kent, Ch. Jus. held, that, if a soldier be detained against his will, knowing him to be an infant; or, if though an adult, he has been compelled to enlist by duress or violence, it is a public offence, but an offence of which the supreme court of the state of New York cannot take cognizance. The reason assigned is, that an abuse of an authority of the United States, is an offence against the United States, and exclusively cognizable in their courts. 9 Johns. 240. The habeas corpus was therefore denied in that case, though it appeared by affidavit, that the applicant was a minor of the age of seventeen years and some months. But, in Massachusetts, it has been held, that a state court may discharge, on habeas corpus, a minor who has enlisted into the army of the United States, without the consent of his parent or guardian. 11 Mass. R. 63. The same rule applies, if the minor has neither parents, guardian or master; the minor may be brought in, and discharged at his own request on a habeas corpus. Ibid.

The return of the habeas corpus should express the cause of commitment or detention, with the same certainty as the warrant. But, if a good cause of detention is expressed, though without technical formality, the court will not discharge the prisoner. Where it appears by the return, that the commitment is made by one who has no authority or jurisdiction, or is for a matter, for which by law no man ought to be punished, or, is otherwise illegal, the court will discharge the prisoner. So, if the cause of commitment is alleged so loosely, that the court cannot adjudge, whether it be a reasonable ground of imprisonment or not. See Bushel’s Case. Vaugh. 137. In this remarkable case, Mr. Bushel was one of the jury, who tried William Penn, the colonist, and a Captain Mead, for assembling unlawfully and tumultuously; the jury, though many attempts were made to awe and intimidate them by the Mayor of London, who presided at the trial, acquitted the accused. For this independence, they were fined forty marks a-piece, and were committed to prison for nonpayment of it; but applying for a habeas corpus, and sufficient matter not appearing on the return, the commitment was decided to be illegal, and Bushel was discharged.

The rule in the United States is conformable to the spirit of this decision. For, if the warrant of commitment appears to be illegal, for want of stating some good cause certain supported by oath, the court of the United States will discharge the prisoner. 3 Cranch, 453.

And therefore, when General Wilkinson, in 1807, with an armed force arrested Mr. Alexander, a gentleman of the bar, at New Orleans, and two other gentlemen, Messrs. Bollman and Swartwout, and sent them to Washington, Mr. Alexander was immediately discharged by a justice of the circuit court, and the two others by the supreme court, on a habeas corpus, their arrest being illegal. See 4 Cranch, 75. But the court will look no further, than to see that a sufficient probable cause is contained in the warrant of commitment. 4 Dal. 412.

In the case of Samuel Stacey, a habeas corpus was issued by a commissioner of the state of New York, directed to Com. Chancey and General Lewis, commanding them to bring before the commissioner the body of Stacey, with the cause of detention. General Lewis returned, that the body was not in his custody, &c. The return was considered by the supreme court of that state, to whom the subject was submitted, to be insufficient upon the face of it, because it did not say, that Stacey was not in his possession or power. It was therefore considered evasive and a contempt of process, and an attachment was immediately issued, without any previous rule to show cause. In this case, Chief Justice Kent in the course of his opinion made the following remarks. ‘This is a case which concerns the liberty of the citizen. Stacey is now suffering the rigor of confinement in close custody, at this unhealthy season of the year (August 1813,) at a military camp, and under military power. He is a natural born citizen, residing in the state. He has a numerous family dependent upon him for their support. He is in bad health, and the danger of a protracted confinement to his health, if not to his life, must be serious. The pretended charge of treason (for upon the facts before us we must consider it as a pretext,) without being founded upon oath, and without any specification of the matters of which it might consist, and without any color of authority in any military tribunal to try a citizen for that crime, is only an aggravation of the oppression of confinement. (There was an affidavit that, General Lewis had expressed an opinion, that a court-martial was the proper tribunal to try Stacey.) It is the indispensable duty of this court, and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. One of the most valuable of these means is this writ of habeas corpus, which has justly been esteemed the glory of the English law; and the parliament of England, as well as their courts of justice, have, on several occasions, and for the period, at least, of the two last centuries, shown the utmost solicitude, not only that the writ when called for should be issued without delay, but that it should be punctually obeyed. Nor can we hesitate in promptly enforcing a due return to the writ, when we recollect, that in this country the law knows no superior, and that in England, their courts have taught us, by a series of instructive examples, to exact the strictest obedience, to whatever extent the persons to whom the writ is directed may be clothed with power, or exalted in rank.

‘If ever a case called for the most prompt interposition of the court to enforce obedience to its process, this is one. A military commander is here assuming criminal jurisdiction over a private citizen, is holding him in the closest confinement, and contemning the civil authority of the state. The parties are also at so great a distance, that no rule to show cause could be made returnable at this term, Sic.’ The court ordered that an attachment be issued, against General Lewis, unless he obeyed the habeas corpus, or discharged Stacey. See 10 Johns. R. 333.

It has been laid down generally, that no one can in any case, controvert the return to a habeas corpus, or suggest any thing contrary to it. It is held, that if a false return is made, suggesting a sufficient cause of detention, the court will not inquire into it, but will remand the prisoner, though he be prepared to show that it is false. It is held further, that he can have no other redress, but by an action on the case for a false return, or an action of trespass for the false imprisonment. See 11 Co. 99 b. Bagg’s case. Godb. 198. .

There are some opinions however to the contrary; See Bac. Abr. Habeas Corpus, (C.); and certainly, the writ of habeas corpus must be deprived of much of its utility and importance, if the person to whom it is directed, can avoid delivering up the prisoner, by a false return of a good cause. To render this process dependent upon the aid of the auxiliary actions of case or trespass, is to render it comparatively ineffectual.

During the last war, a citizen of Maryland was seized by a military recruiting party, under pretence of enlistment. He applied for a habeas corpus, and the officer returned that the enlistment had been regularly and fairly made. The citizen bad abundance of testimony to prove, that there had been an attempt to impose the bounty on him, which he immediately spurned at, and that he had done no act whatever, by which he could be considered as having enlisted. But the judge decided that he could receive no evidence to contradict the return, &c. A more flagrant case could not well be imagined. The consequence was, that the legislature of that state immediately passed an act declaring the law in relation to this subject, authorizing the complainant to controvert the truth of the return. See 5 Hall’s Law Jour. 456.

Though the law was very properly declared by the legislature of Maryland, for the satisfaction of doubts, it may well be questioned whether the decision of the judge, in the case referred to, was correct. The reason why returns in general cannot be contradicted is, because they are usually made by proper officers, appointed by the public. But the return of a private citizen to a habeas corpus, directed to him, is entitled to no such respect, and a recruiting officer in this particular is entitled to no higher consideration than any other citizen! None but officer’s entrusted by lawyith the custody of persons, saeh as gaolers, sheriffs, &c. Stc. can come within the reason of the rule, which does not permit returns to be contradicted. Suppose a man should have the person of a female in his custody, and a habeas corpus being directed to him, returns that she is his wife, or his daughter, or his ward, will the court suffer her to remain in his custody when she may be able to prove the return false. Suppose a man-stealer to have the person of another in his custody, and on a habeas corpus, returns that the prisoner is his slave, will the court permit him to carry off his victim, without hearing the evidence which he may offer to prove the return to be false? For, color alone is no safe criterion; since many blacks are free; and there are some slaves, especially children, whose complexions cannot be distinguished from that of the whites.

To make the writ of habeas corpus an effectual remedy for illegal imprisonment, the prisoner ought to be permitted to controvert the truth of the return, in all cases where the person is not a civil officer, entrusted officially with the custody of prisoners. This, on principle, is believed to be the true law on the subject. In all other cases, no other excuse for not bringing in the body ought ever to be received, but, either, that the prisoner could not be removed on account of sickness, or, that he was not then and had not been in the custody of the respondent, or, that he had made his escape, &c.

If a person should be committed for a contempt, by a court of competent jurisdiction, the liberty of the citizen would seem to require, that the matter or act constituting the contempt, should be returned, in order that there might appear to be sufficient cause for the imprisonment, of which the court having authority to issue the habeas corpus, might judge. But, as every magistrate may by law commit for a contempt founded on sufficient cause, the matter of the contempt ought to appear both in the commitment and on the retnrn to the habeas corpus; otherwise, under a loose charge of contempt without further specification, any citizen may be imprisoned without remedy. And therefore, if either house of congress, or of either of the state legislatures, should commit for a contempt generally, without specifying the particulars of the contempt, a regard for the liberty of the citizens, requires, that the supreme court of the United States, or the supreme court of the particular state, according to the circumstances of the case, should discharge the prisoner on account of the looseness and generality of the return. But, in case of such commitment, if, the particulars of the contempt were specified, and the court should be of opinion that the cause of detention was not sufficient, being grounded on a mere usurpation of power, in violation df the constitution of the United States, or, of that of the particular state, according to circumstances, they ought, without hesitation, to discharge the prisoner. This doctrine seems to be supported by the remarks of Ld. Ellenborough in the case of Burdett v. Abbott, so far as to discharge a prisoner where an insufficient cause of commitment is assigned in the warrant, but is at variance with it in other respects. But, as imprisonment is only justifiable on a warrant expressing a certain sufficient cause, and as it does not consist with the nature of our constitutions and laws, that any body of men, though in authority, should have the power to imprison the citizens arbitrarily, by the simple expedient of assigning any cause in such general terms, that no other tribunal can determine whether it is or is not sufficient, it is presumed that the qualification of Ld. Ellenborough’s doctrine, would not be sustained here. In delivering his opinion in the case referred to, his lordship remarks: ‘If a commitment appeared to be for a contempt of the house of commons generally, I would neither in the case of that court, nor of any other of the superior courts, inquire further; but, if it did not profess to commit for a contempt, but for some matter appearing on the return, which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment, palpably and evidently arbitrary, unjust and contrary to every principle of positive law or rational justice; I say, that in the case of such a commitment (if it ever should occur, but which I cannot possibly anticipate as ever likely to happen) we must look upon it and act upon it as justice may require, from whatever court it may profess to have proceeded.’ See 14 East, 1. But the subject is submitted to the intelligent reader.

The writ of habeas corpus cannot be suspended except by congress, and by them, in cases of rebellion or invasion only, when the public safety may require it. When, therefore, General Jackson, in Dec. 1814, undertook to suspend the privilege of habeas corpus, and proclaim martial law, he betrayed a great misapprehension of the extent of his own authority. It is to this cause, it is believed, and not to any intention of usurping power not delegated, that these measures should be ascribed. But, as he afterwards enforced his illegal proclamation, by means of the armed force under his command, it shows the great inconvenience of entrusting the control of a large military force, to persons who are unwilling to acknowledge, or unable to distinguish the proper limits of their own authority. For this invasion of the rights of the citizens he was fined $1000. See 3 Martin’s Reports, 530.

It may be remarked, in conclusion, that in all cases, where a person is brought up on a writ of habeas corpus, and a sufficient cause of commitment is returned, if he is charged with any crime which is not capital, he may be bailed. But, if he is charged with a capital offence, he will be remanded.

(fn1) The defence was afterwards conducted by Andrew Hamilton, an eminent barrister of Philadelphia, and a Mr. Chambers. The argument of Mr. Hamilton displays great abilities and learning, as well as eloquence, and is particularly deserving of observation for his setting the rights of juries, in cases of libel, on the same basis which was adopted by Mr. Erskine half a century afterwards, in his argument on the trial of the Dean of St. Asaph, and which is now the settled law of the land, in England and in this country. He also most strenuously advocated the doctrine of giving the truth, in evidence, &c. The peroration of his argument is here inserted, partly for its manly sentiments, and partly as a specimen of the eloquence of the Philadelphia Bar, a century ago.

‘Power may justly be compared to a great river; while kept within its due bounds, it is both beautiful and useful; but when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If then this is the nature of power, let us at least do our duty, and like wise men who value freedom, use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust, and boundless ambition, the blood of the best men that ever lived.

‘I hope to be pardoned, Sir, for my zeal on this occasion; it is an old and wise caution, ‘ that when our neighbor’s house is on fire, we ought to take care of our own.’ For though, blessed be God, I live in a government where liberty is well understood and freely enjoyed, yet experience has shown us all, (I am sure it has to me,) that a bad precedent in one government, is soon set up for an authority in another, and therefore 1 cannot but think it mine and every honest man’s duty, that, while we pay all due obedience to men in authority, we ought at the same time to be on our guard against power, whenever we apprehend that it may affect ourselves or our fellow subjects.

‘I am truly very unequal to such an undertaking, on many accounts. And you see I labor under the weight of many years, and am borne down with great infirmities of body; yet, old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land, where my service could be of any use, in assisting to quench the flame of prosecutions upon informations, set on foot by the government, to deprive the people of the right of remonstrating, and complaining too of the arbitrary attempts of men in power. Men who injure and oppress the people under their administration, provoke them to cry out and complain; and then make that very complaint the foundation for new oppressions and persecutions. I wish I could say there were no instances. But, to conclude, the question before the court, and you, gentlemen of the jury, is not of a small nor private concern. It is not the cause of a poor printer, nor of New York alone, which you are now trying. No: it may in its consequence affect every freeman that lives under a British government on the main of America. It is the best cause; it is the cause of liberty; and I make no doubt but your upright conduct, this day, will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery, will bless and honor you, as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that, to which nature and the laws of our country have given us a right—the liberty, both of exposing and opposing arbitrary power, in these parts of the world at least, by speaking and writing truth.’

The jury brought in a verdict of not guilty; and Mr. Zenger was discharged from his imprisonment.

Continued in PART III: Of The Policy Which Ought To Be Pursued By The General Government In Relation To Agriculture, Manufactures, And Commerce.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
RIGHTS OF AMERICAN CITIZENS: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to agriculture
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to manufactures
RIGHTS OF AMERICAN CITIZENS: The policy which ought to be pursued by the federal government in relation to commerce

RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses

Bill of RightsThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

PART II; OF SOME PARTICULAR RIGHTS

CHAPTER VI: Of the Rights of Witnesses

As society is organized for the protection of the persons, and the security of the property and rights of its members, each individual may be considered as undertaking on his part, to conform to all the regulations, which the government may think it expedient to introduce, for the more readily obtaining of those important objects.

Among these regulations may usually be found one, which gives every individual a right to call on others to give testimony, in any cause which may arise before the tribunals of justice, in which his rights are concerned.

This right of calling on witnesses, is one of the greatest importance; because, without it, no man would be able to obtain redress by law, for any injuries which might be offered to him, for want of evidence; unless he was so fortunate as to find volunteers, who would step forward of their own good will to give testimony in his favor. The law therefore provides a process, by which a party in any cause may compel the attendance of witnesses, so far as may be thought necessary to secure their testimony. But, as it would be unreasonable to compel a witness to neglect his own affairs, and to be at the expense and trouble of going from his place of residence, and living at board during his attendance on the court, provision is made by the law for the indemnity of the witness in all these respects.

A witness therefore is under no obligation to attend court at all, unless he is summoned by a regular subpoena, stating the cause in which his testimony is wanted, and served by a regular officer, and also has sufficient money tendered him to defray his charges, or, at any rate, such allowance as is provided by the statute law, whether such allowance is more or less. If such a sum is tendered him, he will be obliged to attend so many days as it is a legal allowance for, unless he is sooner dismissed. But, it seems, he is under no obligation to make advances ; and therefore, after the money which has been paid him is expended, or rather, after the time has elapsed, for which the money so paid is a legal allowance, he is under no obligation to remain in attendance upon the court, unless a further advance is made to him.

Though a witness, when summoned, is obliged to attend court if his expenses are tendered, yet the notice ought not to be so short that, in order to comply with it, he must break off suddenly from his business; the notice should be a reasonable one, so that he may not be put to any inconvenience from the mere circumstance of its being unexpected.

So, a witness is entitled to a reasonable time to convey himself from the place where he is summoned, to the court which he is to attend. As there is no allowance made him by law, for coach hire, turnpikes, Sic. it would seem that he is under no obligation to pay such charges; indeed, he may be unable to do it. Unless therefore some suitable conveyance is provided for him, he can be under no obligation to go any otherwise than on foot, and on the common county road. And as the law estimates a day’s travel on foot, at a certain number of miles, (say twenty) if the witness, as soon as he is summoned and receives his advance, sets out and travels at the rate of twenty miles per day towards the place where the court is sitting, it will be difficult to make out against him a case of contempt for not attending at an earlier day, though perhaps he might have arrived in half the time by taking the stage coach. The default is in the party who summons him; for, either he should have given an earlier notice, or furnished the witness a. suitable conveyance, or advanced him an additional sum for that express purpose.

A witness is usually allowed for a day’s attendance, though he may not actually attend in court five minutes; and if he is obliged to attend court on two or three different days, he is entitled to one full day’s attendance on each.

A person must be summoned, in order to be subject to examination as a witness. And therefore, if an individual should happen to be in court, without having been summoned, and one of the counsel in a cause should call upon him to be sworn and give his testimony, he may refuse to be sworn, without being guilty of any contempt, and has a right to depart without molestation. ,

Where a married woman is summoned, the fees must be tendered to her, and not to her husband.

A witness summoned to attend court, is entitled to the protection of the court, against all arrests, while going to court, or attending upon it, and in returning, if he uses common diligence and expedition, without being obliged either to take the shortest road, or to make use of more than ordinary dispatch.

This protection will be granted, either by a writ of protection, which the witness may have by asking for it, and which it will be a contempt of court for any officer to disobey, by arresting the witness after it is shown to him; or, if the witness has never applied for the writ, and is arrested, the court, on motion, will discharge him. This protection, however, is afforded against arrests on actions brought for causes of a civil nature only, but will not protect the witness from arrests, on warrants for breaches of the peace, &c.

A witness, when called upon to testify, is supposed to be entirely disinterested, because the smallest pecuniary interest in the event of the cause, will be a sufficient cause of exception to disqualify him as a witness. To ascertain whether a witness is interested or not, he may be asked that question, or the testimony of others may be brought to prove it. But, if the question is made to the witness, and he denies it, it is not permitted afterwards to introduce the testimony of others to contradict him.

As no person will be permitted to give testimony, by which he will discharge himself from any species of legal accountability by throwing that burthen on another; but, if he is wholly and absolutely discharged himself, from such accountability in any legal way, will immediately become a competent witness, it has become a common practice to qualify an interested witness, by releasing him, if there is a cause of action against him, so that he becomes entirely indifferent to the result of the suit.

It frequently happens, also, where an action is brought against a wrong party by mistake, either of the law or the fact, that the person against whom the action ought to have been brought, if used as a witness, would clear the defendant by making himself chargeable. To the competency of such a witness, the plaintiff in such case can never make any valid objection, because he is called upon to swear against his own interest.

But, it may be asked, is a witness bound by law, to testify against his own interest in this way? May he not decline to answer any questions, the answers to which may be given against him either in a civil action, or on a criminal prosecution?

With regard to such questions, as if answered one way, tend to incriminate the witness, he is entirely at liberty to decline answering them. But, this is held to be the privilege of the witness alone. The counsel of the parties have no rights on this subject. The witness may refuse to answer the question or not, at discretion. As a matter of prudence, however, the witness ought to take care to object to answering the first question in relation to such objectionable subjects of inquiry; for, it has been held, if he answers to part, he may be compelled to answer to the whole, whatever the consequence may be. See 1 Moody and Mai. 47.

PrecedentThis doctrine however seems to be laid down too broadly; for, the only reason why a witness who has answered to part, shall be compelled to tell the whole, is, that a partial statement may do great injustice to one of the parties. But, the answer is, that, where part is told, and the rest is inaccessible, the part told is no evidence at all to the jury. Thus, the court will not suffer part of a deed, where the rest is torn off, to be shown to the jury as evidence of a contract; because it is impossible to tell what the effect of the whole would be. Suppose a witness, after he had been examined originally, should die in a fit before his cross examination, would not the court generally instruct the jury to pay no regard to his testimony, though possibly there might be some excepted cases? The doctrine of the case cited, it would seem, ought to be restricted to cases, where a witness, with a full knowledge of his rights, to refuse to answer all questions tending to incriminate himself, voluntarily testifies to part of a transaction, &c. Here he may be compelled to answer to the whole, without any violation of principle ; since, by answering the first question, he, of his own accord, relinquishes the protection which the law affords him. Ld. Ellenborough, in the case Jean Peltier, remarks : ‘I think it is the office of the judge to suggest to a witness, that he is not bound to answer anything which will incriminate himself; and if a judge were not to remind a witness of that circumstance, he would neglect his duty.’ It would therefore be a good rule to establish, that a witness does not relinquish the protection of the law in any case, by a partial answer, unless the court has given him notice in the manner suggested by Ld. Ellenborough.

It is held, that questions may be put to witnesses on a cross examination, tending to degrade them, for the purpose of trying their characters, unless the answers to such questions may expose them to punishment. 1 Moody and Mal. 10S. The inference is, that the witness will be bound to answer any such questions. In New York, however, it has been held, that a witness is not only not bound to answer any questions, the answers to which may expose him either to a civil or criminal prosecution; but, it seems, he is under no obligation to answer any questions, the answers to which may have a tendency to degrade or disgrace him. See 1 Johns. R. 498. Whether such questions ought to be permitted to be put, does not seem clearly settled. For, it is not the same thing to allow the question to be put, and leave the witness to answer, or not, at discretion, and to refuse to permit such questions to be put at all. The decisions on this subject cannot easily be reconciled with each other. In one case, the court would not suffer the question to be put to a witness on a cross examination, whether he had not been put in the house of correction. 4 Esp. R. 225. On the trial of James Watson for high treason before the king’s bench, the general doctrine in relation to this subject, was held to be: 1. That if any question is put to a witness to shake his credibility, he may refuse to answer it. If he answers, you must take the answer, and will not be allowed to impeach it. A witness who has received a pardon for a crime, or who has been prosecuted, and the prosecution is put an end to, is not bound to answer any questions in relation to the subject. No evidence will be received to show that a witness has committed infamous crimes, for the purpose of impeaching his character and testimony, short of the record of conviction; because the court will not try collateral issues, which might be endless. If a question is asked a witness, whether he has not committed a particular crime, and he refuses to answer; though this may have its effect on the jury, yet it is not sufficient to discredit him in law, or render him incompetent. It seems to be the settled practice in England to permit such question to be put, and leave the witness to answer or not, as he pleases.

In Phillips’ treatise on evidence, however, a case is mentioned where, a witness being asked on a cross examination, whether he had not been tried for theft, refused to answer, and appealed to Ld. Ellenborough, whether he was bound to answer. Ld. Ellenborough said, :If you do not answer I will commit you,’ adding, ‘you shall not be compelled to say, whether you were guilty or not.’ 1 Phil, on Evi. 269, in notis. In New York, it seems, no public officer is bound to answer any questions in relation to his official conduct, the answer to which may tend to impeach his integrity. See 1 Johns. 498.

Whether a question tends to incriminate a witness or not, it is held, not to belong to the court to decide, but to the witness himself. Because, the court cannot know beforehand the facts and circumstances, which may be necessary in order to decide whether it may or may not, have such a tendency. For, though a question apparently may not have that tendency at first, yet, it may be the first link of a chain which has. See 2 Nott. and Mc. Cord. 15. In Burr’s trial, it was held, that a witness may be required to answer on oath, whether he thinks answering a question will tend to incriminate himself, before he will be allowed to decline to answer it. With regard to questions, the answers to which may expose the witness to a civil action, or may be given in evidence against him, in any action, which may afterwards be brought either by or against him, the law does not seem finally settled. Under this general class, a variety of cases are comprehended, which, in their decision, would seem to involve very different considerations. For, Erst—the answer to the question may be obviously and indispensably necessary to the plaintiff in the action, for the maintenance of his suit, or, it may be thus necessary to the defendant’s defence, in a civil action, or the prisoner’s defence, on a criminal prosecution; if it is not answered, therefore, there must be a failure of justice. Second—the answer, though it may be directly injurious to the interest of the witness, may be wanted by one of the parties, for the mere purpose of strengthening an argument of the probability or improbability of a certain fact, which is material to his cause. Here there is a greater or less probability, according to the circumstances of each particular case, that there may be a failure of justice in consequence of not obtaining an answer from the witness. The rule, in these cases, it is obvious, must be grounded on the same principle. It may be remarked here, that, in these cases, if the witness is compelled to testify, no injustice can be done to him by it in fact, because he is bound to answer nothing but the truth. He does not therefore create a cause of action against himself, but merely furnishes evidence against himself, by which an action may be maintained against him. But, however, it has been held, that though one who conveys land, may be a witness to prove that he had no title, he is not compellable to give such evidence. 2 Ld. Raym. 1008. By the law of Scotland, it seems, a witness is not held to answer against his interest; and in such case, it is held to be the duty of the presiding judge, to inform him of his right. Tait on Evi. 429. In Pennsylvania it has been held, that a witness is bound to answer any questions the answers to which do not render him liable to a criminal charge, or tend to degrade him. In the case of Baird v. Cochran, Tilghman, Ch. Jus., ruled the law to be so, and observed, that’ every man may be compelled on a bill filed against him in equity, to declare the truth, though it may affect his interest; why then should he not be compelled at law, except where he is a party to the suit’? This is a most unfortunate analogy, ox rather there is a great want of it in the two cases. A man who has a bill filed against him in equity, is compelled to disclose; to maintain the analogy, a defendant in an action at law, ought to be compelled to disclose. This, however, is not contended for; but it is contended, that a witness ought to disclose his interest, in an action at law between third persons: there would be some ground for analogy, if a third person were compelled to disclose his interest in a suit in equity between third persons. But the true ground of the argument is, that as a person may be compelled to disclose in equity, by bringing a bill in equity against him, there is no hardship in compelling him to disclose the same interest, in an action at law between third persons. But there is a striking difference between being compelled to answer questions on a cross examination, as a witness on the stand, and giving answers to interrogatories, with the direction and assistance of legal counsel at the elbow.—See 4 Serg. & R’ 397.

In Connecticut, it is settled, that a witness shall be protected from answering questions, which subject him to a civil suit or debt. See More v. Hathaway. 3 Con. R.

Third—the question may be wholly immaterial to the issue, so that, whether it be answered affirmatively, or negatively, or not at all, it will have no effect whatever on the result of the action or prosecution. In this case, it is obvious, there will be no failure of justice in the cause then in hearing, if the witness should decline answering. It may be remarked, also that, if the witness should see fit to answer, he cannot be convicted of perjury, though he should swear falsely; because perjury can only be committed by swearing falsely in relation to something which is material to the issue. For, though it is settled that perjury may be in a mere circumstance, yet it must be one that is material to the issue, though it is not necessary that it should be decisive. So held by Ld. Holt. See 10 Mod. 195. Carth. 422. 2 Ld. Raym. 889.

It has been held, that a subscribing witness to a note, may be compelled to testify to that fact, though he may be bail for the defendant; but, if he is not a subscribing witness, he would be at liberty to testify or not. See 1 Strang. 406. This is on the principle, that a subscribing witness undertakes to testify when called on, and cannot by his own act destroy the party’s right to his testimony. As to the question, what papers or documents a witness, who has been summoned by a subpoena duces tecum, [A subpoena duces tecum is used to compel the production of documents that might be admissible before the court. It cannot be used to require oral testimony] is bound to produce, no general principle appears to be settled, which will apply to every case that may arise. It seems, however, that a witness is not bound to expose his own title deeds. Such is the settled law in England, because, by exposing his deeds, he may disclose a flaw in his title. The same reason does not seem to apply in places where title deeds are recorded; but, as a copy of a title deed may at any time be had by applying to the registrar, there seems to be no reason, why a person should be compelled to produce his title deed, unless there is some other object, than to obtain a knowledge of its contents. So, it is held that a witness ought not to be compelled to produce his private books, relating to his private transactions. See 1 Str. 646.

So, a trustee, to whom it is suggested the plaintiff has conveyed his estate in trust, may demur to the production of the title deeds. 2 Stark. R. 203.

So, a solicitor to a third person will not be compelled to produce the deeds of such third person, where it may be prejudicial to his interest. 1 Starkie, 95. For, generally, an attorney is not at liberty to disclose communications made to him by his client, whether the client is or is not a party to the cause before the court. See 2 Camp. 578. In these cases, it may be remarked, that this is the client’s privilege; and, it will seem that, where any such confidence is recognized by the law, the witness will not be called on to testify, nor even permitted to do so. And therefore the client’s interpreter cannot be examined as to communications, made through him to his counsel. And, from a regard to a similar principle, a woman after her husband’s death shall not be examined as to conversations, had between herself and her husband during his life time. And for the same reason, a woman, after a divorce, cannot be called on to give evidence of conversations previously had between herself and her husband. See 1 Ryan and Moody, 198.

It has been held, that, under a subpoena duces tecum, a witness is under no obligation to produce private papers in his custody. 1 Esp. N. P. Cases, 405. In the case referred to, Ld. Kenyon denied the general position, that, in such case, a witness might be required to produce every paper in his possession, which did not tend to incriminate him, because it would ruin millions. See 1 Esp. N. P. Cas. 405. However, it seems impracticable, to lay down any general rule or principle as to the production of papers and documents. In Amty v. Long, Ld. Ellenborough observes, that ‘though it will always be prudent and proper, for a witness served with such a subpoena, to be prepared to produce the specified papers and instruments at the trial, if it be at all likely, that the judge will deem such production fit to be there insisted upon; yet, it is in every instance a question for the consideration of the judge at nisi prius (fn1), whether, upon the principles of reason and equity, such production should be required by him; and, of the court afterwards, whether having been there withheld, the party should be punished by attachment.’ 9 East. 485. The question as to the obligation of the witness to produce papers, is therefore to be decided by the court, according to the circumstances of each particular case. But, this is to leave the subject wholly unsettled, because the opinion or discretion of different judges, as to the same facts or circumstances,. is found to be different, and indeed the same judge is sometimes found to entertain different opinions at different times. Thus, when the question was made on the trial of Ld. Melville, whether a witness was bound to answer a question, the answer to which would subject him to a civil action, four judges held that he was not, and eight judges held that he was. As this is a case, where a similar principle is involved, if it had come up at nisi prius, the witness might or might not have been held to answer; according as one of the four, or one of the eight judges happened to preside. If the law is so unsettled, therefore, on this subject, and a case should occur, where the witness should be called upon to violate the sacredness of private confidential correspondence, or, to render himself liable to a civil action, it might be well for him not to be too hasty, either in the answering of questions, or in the production of papers. It has been said, and there seems to be no improbability in it, that Ld. Keith, in his answer to a question proposed to him, as a witness in an insurance case, subjected himself to damages to the amount of ten thousand pounds sterling. If a case of any considerable importance, therefore, should arise, the witness must by no means rely upon the court to protect his rights, unless he claims them. For, if he neglects to assert his rights, the court will take for granted that he waives the objection, and consents to produce the letters, and to answer the objectionable questions. Many things take place in this way, in the course of a trial, which would immediately be overruled by the court, if an exception were taken to them, regularly and in season. But, in most cases, the witness not being acquainted with the precise extent of his rights, does not know what he may legally insist on, and what he cannot. Sometimes, therefore, it happens, that no objection is made, and the irregularity passes off without notice, as if done by consent. In any such case, therefore, the witness should state his objection to the court, and if of great consequence, should request delay, in order to obtain the advice and assistance of counsel to argue it, and, if it should be overruled by the court, and it becomes necessary for the protection of his rights, and the court is one of inferior jurisdiction, he may appeal, and if his appeal should not be allowed, and he is confident that his objection is a legal one, he may take the hazard of disobeying. For, if he is committed in consequence, he may bring his habeas corpus, when, if his objection is legal, he will be discharged. If a witness should be called on to produce papers, put into his custody by a third person, who had a right to call for them when he pleased, it would be very proper to give immediate notice of the subpoena, to such third person, that he might adopt such measures as he saw fit. .If in consequence of it, the owner were to replevy [To regain possession of by a writ of replevin] them (though it has been held that at common law replevin does not lie for charters) there does not appear to be any way of coming at them. But the law does not seem to be settled.

It is apparent that the rights of witnesses in some respects, are not so much regarded, and consequently, not so well protected as they ought to be, from whatever cause it may arise. No reference is here had to the circumstance, that a witness is compelled to neglect his own affairs, for the purpose of traveling to and attending upon the court, to give testimony in a cause in which he has not the slightest concern; because this is for the benefit of one of the parties in the cause, and, is the consequence of a regulation, of which he will have the advantage himself, if he ever has a cause in court. But, it is intended to allude principally to the mode of examining witnesses, by way of cross examination, as it is sometimes seen practiced, and, for any thing that appears, may always legally be done, but seldom justifiably.

The legitimate objects of a Cross examination, are among others, 1. To enable the party against whom a witness is brought forward to testify, to elicit from him any circumstances which attended the transactions to which he may have testified; but which he may have omitted, or had no opportunity to mention on his direct examination. 2. By a series of close and judicious interrogatories, respecting the minute circumstances attending such transactions, to ascertain whether the witness is testifying to a story, which he has either fabricated himself or concerted with others. 3. To determine in the same way, supposing the witness to be honest, how far his observation, memory, and discrimination can be depended on. 4. On the supposition, that he is a dishonest witness, to exhibit him in that light to the jury; by compelling him to invent new falsehoods at every question, in order to keep his story consistent with itself, until he is involved unconsciously, in absurdity, impossibility, and self-contradiction. The advantages of a cross examination in all these respects, are obviously very great. In an examination in chief, it is a general rule, though there are some exceptions, that the questions should be very general, so as not to intimate to the witness what he is desired to say, nor to prompt him, nor to lead him, nor to put answers in his mouth. After the direct examination is finished, which terminates as soon as the witness has testified sufficient for the examiner’s purpose, because it is part of the professional tactics, observed on such occasions, not to push to the inquiry further, as well because it is unnecessary, as because something unfavorable may come out, the cross examiner considers it his duty to draw out what has thus been omitted, which frequently gives a different color to the case. On a cross examination, therefore, the advocate has a right to make use of questions of a much more direct and particular nature, than are usually allowed on an original examination. The advantage of this mode of examining a witness, in detecting a concerted story, sworn to by the witness on his direct examination, is very great; a few moments of well directed cross examination, being sufficient to expose the most ingeniously contrived fabrication. This is done by a close inquiry into minute circumstances, without which no real event ever happens, and which, if remembered, may readily be sworn to by an eye witness. But minute circumstances are seldom concerted in a false relation, and the witness, if interrogated in relation to them, is obliged to rely on his power of extemporaneous creation, to keep his testimony consistent. The consequence is, that the consciousness of adding falsehood to falsehood, accompanied with the fear of detection, exposure and punishment, soon throw him into a state of perceivable embarrassment, and perhaps inextricable confusion. A witness sometimes falls into a similar situation, from having answered a question on his direct examination, with too little precision, either from heedlessness or vanity, though without any unfair intention whatever. In a case of this kind, which occurred on the trial of Hardy, for high treason, a witness, who was a dancing master, being asked whether there had been a subcription for a certain individual imprisoned; answered, ‘ Yes; perhaps I gave a shilling or half a crown, or a guinea or five guineas towards his relief.’ Being afterwards cross examined down to, ‘but I might have given half a crown,’ and being further urged with perplexing questions on the subject, he said, ‘I would as soon give one as the other for a poor family in distress.’ Ch. Jus. Eyre then gave him the following reproof and caution. ‘You have brought yourself into a scrape, only for the sake of a flourish. When you are upon your oath, if you would only speak plain English, you would be under no difficulty. There is a great difference between a shilling, and a guinea, and five guineas, therefore you should not have conveyed an idea, that you did not know whether you gave one shilling, two shillings, one guinea or five guineas. I would advise you, when you are upon your oath, never to speak by metaphor,’ &c.

With regard to the mode of examining witnesses, it may be further remarked, that it is not considered proper, though it is a very common practice, to state direct propositions to a witness, with the tone of a person asking a question, and to require an answer to it, as if it were really a question. On this account, Mr. Justice Abbott checked the examining counsel in the trial of Isaac Ludlam for sedition; ‘You must not,’ says he) be angry with the witness, if what he says is not an answer, when you do not put a question.’ It is also a frequent practice in cross-examining a witness, to state interrogatively to him, propositions consisting of a variety of circumstances, some of which are true and some false. This is unfair and ensnaring; for, if he gives a general denial, intending that the whole is not correctly stated, it may be argued, that he has denied that part which is true. On the other hand, if he gives a general assent, intending it only for that part which he thinks material and which is strictly true, if the slightest inaccuracy can be detected in the whole proposition to which he has assented, it may be urged against him to impeach his credit. A witness for his own security, in any such case, would do well, to make no reply to propositions which are not questions, and, where the question is embarrassed with a variety of particulars, should request the examiner to simplify his question, or should ask, ‘what is the question,’ which will induce him to put it in a more simple form, and directly to the purpose. It is a common practice also with some, when examining a witness, to interlard their questions with comments and observations. This irregularity is also much censured by the court; particularly by Ch. Jus. Eyre, and Ld. Ellenborough. It is also considered unfair and a breach of decorum, While the counsel on one side are examining a witness, for the counsel of the opposite party to make use of grimaces or gesticulations, expressive of surprise, as holding up the hands, &c. In Watson’s trial for high treason, the court declared, that they would animadvert very severely upon such conduct. In the course of the same trial, Ld. Ellenborough checked Mr. Wetherell for improper treatment of a witness, and observed that he would not suffer injustice to be practised upon a witness by counsel. IMr. Jus. Abbott, also remarked on another occasion during the same trial, ‘ Every witness is entitled to the protection of the court from insulting questions and observations.’ 32 St. Tr. 291,298.

It sometimes happens, that the result of a trial depends upon a particular fact, which is sworn to by a single witness only. When this is the case, every legal measure possible is resorted to, for the purpose of impeaching his credit with the jury, so that they may set his testimony aside, and find their verdict for the party against whom he testifies.

For this purpose, persons may be called to testify, that the general reputation of the witness for veracity is bad. But they can only be asked general questions in relation to the subject, i. e. as to their opinion of his character for truth, and the grounds of that opinion; but, it would seem, that they ought not to be permitted to state particular facts against the witness. See 2 Starkie, 241.

The testimony of the witness may also be impeached by showing, that he has previously done or said something, inconsistent with what he now testifies. But, before introducing testimony of this kind, the witness must be asked, whether he has said or done that particular thing, so that he may have an opportunity to deny, or admit and explain it; and contradictory testimony ought not to be admitted until he has had this opportunity. See the opinion of Abbott, Ch. Jus., in the Queen’s Case; 2 Brod. and B. 312.

A witness cannot be cross-examined as to any collateral independent fact, irrelevant to the matter in issue, for the purpose of contradicting him, if he answers one way, by another witness, in order to discredit his whole testimony. In such cases only general questions can be put. If, however, the witness should answer, his answer cannot be contradicted by other witnesses. For, this would lead to the trial of collateral issues, and might be endless. See 7 East, 108. 2 Campb. 637.

Nor can a witness be cross-examined as to facts not in issue, if such facts are injurious to the characters of third persons, not connected in the cause. 1 Car. and P. 100.

The court will protect a witness from questions put through impertinent curiosity, and much more, if it seems probable, that any unfair use may be made of them. See the opinion of Tilghman, Ch. Jus., in the case of’ Baird v. Cochran. 4 Serg. and R. 397. See also, 1 Car. and P. 363.

Every witness is entitled to ordinary civility, at least, from the examining counsel; since, whether he is willing or not, he may be compelled to attend the trial by the process of the court, and if he refuses to answer proper questions, may be fined and imprisoned for the contempt. He is not at all, in legal contemplation, under the control of the examining counsel, except so far as the court sanctions and authorizes the questions put by him, and, in case of any illiberal treatment, has a right to claim the protection of the court, which is readily afforded when there is a suitable occasion for it and it is claimed decently and respectfully. If the ill treatment is gross, or the witness does not seem to be aware that he has a right to this protection, the court will interfere of their own motion, as where any opprobrious epithet is bestowed on a witness, whether merited or not. It would certainly be singular, if the judges should permit their court to exhibit a scene of indecent altercation between the examining counsel and a witness. In the trial of Mr. Hardy, both Mr. Erskine and Mr. Gibbs were checked by Ch. Jus. Eyre, for addressing the witness by the epithet of spy, though he was in fact a government spy, and an informer. 24 St. Tr. 751.

It is plain, therefore, that those professional gentlemen mistake the purpose of a cross-examination very much, who waste . the time and patience of the court, jury and witnesses, by asking a thousand frivolous and unmeaning questions, which have no bearing on the merits of the cause. When such questions are asked, the court cannot always stop them, because they cannot tell beforehand, whether something may not be made of them in the address to the jury. If therefore they are not absolutely illegal questions, and the witness makes no objection, the court commonly does not interfere. It frequently happens, in consequence, that the witness not knowing his own rights, and believing himself bound to answer every question whatever that is put to him, makes no objection to answer, and if he finds himself insulted by an offensive question, instead of asking the opinion or protection of the court, resorts to ill-tempered and petulant answers. But, when it is found that, after all this parade of questioning, no use can be made of the answers, let them be made which way they may, being wholly foreign to the case before the court, the judges and jury very naturally feel disgusted, because they perceive their attention has been kept in suspense without any other object than the gratification of the examiner’s vanity, in having all eyes directed towards him during the examination. These useless questions furnish the occasion for the sarcasm of Swift, which is in substance, that if an action at law is brought for a cow, the decision of the case does not depend upon the inquiry, whether the cow belongs to the plaintiff or to the defendant, but whether the cow is a black cow or a red cow, or has long or short horns.

It is to be much wished that the law, with regard to the examination of witnesses, were altered in the respects following, viz:

1. That witnesses should never be called for the purpose of impeaching the testimony of a witness, by giving testimony against his character for veracity. This is a most unjust practice, and though sanctioned by long usage, is contrary to legal analogy. For, in this way, the reputation of the witness is attacked in a suit between third persons, in which he has been compelled to testify, and, for aught that appears, may have told the exact truth. This is done without any previous notice to him; and, if he had received notice, he is entitled to no process to compel the attendance of his witnesses, not being a party to the suit. If his enemies are summoned as witnesses against him, they have an opportunity of aspersing or disparaging his character in this respect, with perfect impunity. The defence of his character, is left entirely with one of the parties in the suit, whose principal if not sole object, is merely to gain his own cause, and who may or may not feel interest enough to endeavor to establish it. His feelings and character may therefore be grossly injured without the possibility of redress.

2. That all questions, the answers to which tend to disparage a witness, should be overruled by the court; for, if the subject of the question is known, it may be proved by others; and if unknown, the witness is tempted to perjure himself, and thus preserve his character. But, if he acknowledges what is insinuated against him, then he establishes his veracity, instead of destroying it; because a person who will not be guilty of falsehood for his own sake, can hardly be supposed willing to practice it for the sake of another.

3. That personal questions, addressed to the witness relative to his private affairs, should not be put until the examiner has made it appear probable, that the ends of justice cannot be obtained without an answer to them.

4. That witnesses should never be examined under oath, but each witness should be affirmed under the pains and penalties of perjury. There could then be no objection to the competency of atheists; nor of children, however young; but the credit of the witness, in every case, would be left where it ought to be left, with the jury, and-crimes, which may now go unpunished on account of the inadmissibility of certain testimony, would then be subject to legal animadversion.

fn1. A court of nisi prius is a court that tries questions of fact before one judge and, in some cases, a jury. In the United States, the term ordinarily applies to the trial level court where the case is heard by a jury, as opposed to a higher court that entertains appeals where no jury is present.

Continued in CHAPTER VII: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

RIGHTS OF AMERICAN CITIZENS: The Rights of Juries

know-your-legal-rightsThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

PART II; OF SOME PARTICULAR RIGHTS

CHAPTER V: Of the Rights of Juries.

Wherever the trial by jury has been introduced, it has usually furnished a theme for unqualified admiration, on account of its wisdom, impartiality, and justice, and because it is thought to furnish the best security for the citizens, or subjects of the government, against public and private wrongs.

Its wisdom is apparent in this, that it is admirably contrived to render the people satisfied with the administration of justice. For, where a case goes to the jury by the common law, as it almost always may at the discretion of the defendant, no judgment can be given against any person either in a civil or in a criminal trial, unless after a verdict has been rendered against him, by them. Now, since all men of decent characters are qualified to serve on a jury, a few only being exempted or excluded from motives of public convenience or policy, or on account of the nature of their usual occupations, whether public or private; and as the jurors are commonly drawn by lot in each county, at regular periods, for the decision of causes arising within it, every qualified citizen has a chance of being called upon to serve in this office, and, consequently, to decide upon the law disputes of his neighbors, as well as upon all criminal charges prosecuted by the public. The people are aware of this, and are better satisfied to have their causes, or the question of their guilt or innocence of any such criminal charges, decided by men of the same rank, condition, and means of information as themselves, than they would be with the decisions of any judges, however learned and wise, the justice of which decisions they would seldom be able to perceive, because they would not readily understand or feel the weight of the reasons, which those judges would assign for their decrees.

Its impartiality is secured by the manner, in which the jurors, who are to constitute the jury for the decision of each cause, are designated. For, the jurors names being usually drawn by lot, it is impossible to ascertain any considerable time before the trial, what persons will be returned to serve on the jury during the session of the court, or, out of that number, what individuals will be impaneled to serve in any particular trial. Consequently, it would seem impracticable for a party in a cause, or a prisoner on a criminal trial, to procure any particular individual to be returned as a juror, or to be impaneled on the jury. But, as it sometimes happens, that a person returned to serve on the jury, when the court directs a jury to be impaneled for the trial of a particular cause, is supposed by one of the parties not to be impartial, the law permits either party in a civil cause, to challenge any of the jurors, and have them removed from the jury box and others returned in their room, if he can assign any reasonable cause, why the jurors challenged, may be thought to be more likely to favor the party, who does not challenge them. Further, as no one who considers himself as having justice on his side, would be willing to have his case tried by persons, who were not men of fair character, every litigant has a right to challenge a juror, if he has been guilty of any infamous crime. This however he should be very cautious in doing; for, a challenge of this kind is not to be made lightly. As a matter of prudence, the suitor making it, ought to have the record of conviction in his pocket at the time; for, he has no right to put the question to the juror, or to examine him in relation to any matter, which may either charge him with a crime, or with misbehavior, or expose him to shame or disgrace, in order to challenge him as a juror. See 1 Sal. 153.

In capital trials, by the common law, the prisoner has a right to challenge thirty-five jurors in succession, peremptorily, and without assigning any reason whatever for it. This indulgence is shown, that the prisoner may not be tried for his life, by any person whose appearance or character he may dislike, though such dislike may be the effect of mere prejudice, whim or caprice ; and besides these thirty-five he may challenge as many more, as he can assign sufficient reasons for challenging.

The trial by jury is therefore well calculated to do justice between the parties, in criminal trials as well as civil causes. But, besides, the jurors being taken from the great body of respectable citizens, and consisting of so large a number as twelve, one or more of them will be likely to be acquainted with all the general modes of business, the habits and practices and customs of society, as well as with the views and feelings of persons in the same class or business, with the parties in the case before them; they will therefore be well able to determine equitably and justly between them, as to the subject in dispute, the value of properly, the extent of injuries, &c.

In protecting the citizens from private wrongs, the lawful power of the jury, in assessing damages for injuries committed, is particularly observable. For, here they have a right to take into view, not only the amount of damage which the injured party has sustained, which is the least sum for which a jury can ever justifiably find a verdict; but, if the injury is of such a nature, that public policy particularly requires that it should be prevented from taking place again, the jury will be well warranted in giving what are called exemplary damages, as a warning to the defendant as well as to all ill-disposed persons in general.

The operation of this mode of trial in protecting the citizens from any species of public wrong or oppression, may be illustrated by numberless imaginary though not impossible, cases; e. g. suppose an unconstitutional and oppressive law to be enacted either by congress, or by the state authority, which however the courts, for whatever reason, see fit to sustain, if the jury were satisfied that such laws were unconstitutional and oppressive, they would have the power and the right, and, not only so, but it would be their solemn duty to acquit any prisoner, who might be charged with an offence against such law.

But in order to form a just estimate of the value of the trial by jury, it will be necessary to descend to further particulars. It is intended, therefore, in the course of this chapter, to consider the right and power of the jury in relation to their verdict: 1, in actions for breach of contract; 2, in actions for wrongs done maliciously, fraudulently or forcibly; 3, in criminal prosecutions. Before proceeding to these particulars, however, it may be proper to remind the reader, that it is a general rule applying to all cases which are the subject of a jury trial, that it is the province of the jury to ascertain all facts upon which the decision of the case before them depends, while the law of each case is to be determined by the court. It is therefore considered the duty of the jury, to make up their verdict from the evidence exhibited to them at the trial, under the direction of the court as to the law applicable to the case. The law on this subject is thus laid down in Plow. Commentaries, 114. ‘It is the business of the jury to inquire of matters of fact, and not to adjudge what the law is; for that is the office of the court. ‘And, if the jury should find all the facts, and should further find that the law is so, when it is not so, the judges shall decide according to the matter of fact, and not according to the finding of the jury. For, the verdict will be good as to the fact found, but void as to their conclusion.’

But, as it sometimes happens, from the fallibility of human reason, from which experience has shown, that the most able judges are not always exempt, that the law is incorrectly charged to the jury; and as it is obvious, if the error is in a material point, and the jury are governed by the charge, they will give their verdict for the wrong party, and, in this manner, injustice will be done to him, this general proposition must be subject to some restrictions. For, there appears to be an analogy between the right of the jury to decide as to the facts from the testimony of the witnesses, and their right to form their opinion, as to so much of the law as is necessarily involved in a general verdict, from the charge of the judges. For, the duty of the jury requires them to bring in a verdict according to the law and the evidence in each case. In making up their verdict, therefore, so far as the facts are concerned, they are morally bound to believe the testimony of those witnesses whom the Court admit as competent, subject to these conditions : 1, that the facts sworn to, are not improbable; 2, that the testimony of the witness is consistent with itself; 3, that it is not contradicted by any other witness; 4, that it is not contrary to what the jury themselves know to be the fact; for, it is settled that the jury may give a verdict on their own knowledge, though regularly every juror, having a knowledge of any facts, ought to communicate it to the Court and be sworn. 5. That there is nothing in the appearance or manner of the witness in giving his testimony, to lead the jury to distrust his truth or sincerity.

7th-amendmentAs the jury therefore may find the truth of facts on their own knowledge, and ought by no means to find a verdict contrary to what they know to be the case; so, as to the law, though they are bound to receive what the judges charge them, as the law by which they are to be governed in making up their verdict, so far as it is applicable to the case before them, yet this must be subject to the restriction, that they the jurors, do not know the law to be otherwise. In most cases, it is true, the jury are wholly incompetent to determine, without the assistance of the Court, what the law is in relation to the case before them. They have a right to presume therefore from the circumstance of a judge’s appointment to office, and his learning and experience, that his charge is correct, unless they know or conscientiously believe to the contrary; and, if he should be incorrect, and the jury, confiding in the correctness of his charge, should bring in an erroneous verdict, no blame can ever rest upon the jury; since they have merely placed a proper confidence in the knowledge of a person, whom society or the constituted authorities of it, have appointed to be an official expounder of its various laws and ordinances. But this will not hold good, where the jury know the judge to be in an error, or what comes nearly to the same thing, where they are thoroughly convinced and conscientiously believe, that he has charged the law incorrectly. And, even in the cases, where the party injuriously affected by the verdict, may have a right to appeal; still, this circumstance will not discharge them from the strictest responsibility for the correctness of their own verdict; because the law confides, that in every stage of a cause, each individual, officially concerned in the administration of justice, will do his duty scrupulously and punctiliously, without relying upon higher tribunals to correct his mistakes. Besides, those who have a legal right to appeal, do not always find themselves in convenient circumstances to exercise it.

1. Of the power and right of the jury, in making up their verdicts in civil actions for breach of contract.

In actions brought for a breach of contract, where the performance consists in the payment of a precise sum of money, if the jury are satisfied that there has been a legal contract, which has not been performed, and no satisfactory excuse for non-performance is proved, they are bound to find a verdict for the precise sum due on the contract. Here they have no discretion whatever, and, if they should find a verdict for either more or less, the Court would set aside the verdict, and grant one or more new trials until this precise justice was done, unless it was adjusted by the consent of the parties.

Where the breach of contract consists in a failure to deliver certain goods or merchandize, the jury would have rather more latitude for the exercise of their discretion. For, though they would be bound to assess the damages at the true value of the goods, this of course must be understood as binding the jury according to the conscientious opinion of the jurors. But, as there would not be the same precise standard of value, in this case, as in the preceding one, and, as they might form their valuation upon the testimony of different witnesses, who did not agree precisely, the jury would have a legal right to adopt any valuation for the goods, between the highest and the lowest value, sworn to by the witnesses. But, if they should go beyond those limits on either side, and it could be made to appear to the court, the verdict would be set aside here also, and a new trial granted.

2. Of the right and power of the jury in civil actions for wrongs done maliciously, fraudulently, forcibly, or carelessly.

In these cases, the jury have a still greater latitude in assessing damages. But, where property is maliciously or wantonly destroyed, their verdict cannot, consistently with either law or conscience, be for a less amount than its value; though, if there are any circumstances of peculiar aggravation, the jury will be warranted in law to assess a far greater sum. For, the rule in all cases of personal wrongs is, that the jury may decide at discretion upon the amount of damages, with no other restriction, than that they must not be absurdly small nor enormously large. For, in either case, it is not to be doubted that the courts will grant a new trial for the purposes of justice. This power in the courts however will very rarely be exercised, because the design of it is not, to interfere with the power, which the law bestows on juries, of assessing damages for injuries at their discretion; but it is intended to secure to the suitors the honest and conscientious exercise of the discretion of the jurors, and to protect the parties from the effects of partiality, prejudice, passion, weakness of understanding, corruption or mistake in the jury, to one or the other of which, an absurd and unreasonable verdict, if to a very great excess, must necessarily be ascribed, and for which, it would be a disgrace to the law to suppose it had furnished no remedy.

While on this subject it may not be amiss to remark, that the reason of the law in some cases of actions for wrongs, seems to be misapprehended, as it is sometimes applied. For, in such cases, and even where an injury has been done maliciously, testimony is sometimes admitted to show that the wrong-doer has but little property, as if this circumstance afforded an extenuation.

But, it must be apparent, in such cases, that the jury cannot consistently with their oaths, ever give a verdict for less than they conscientiously believe to be the amount of the damage, which the plaintiff sustains by the malice, or even carelessness of the defendant, whether the defendant has sufficient estate to respond damages or not. And why should the defendant be in a better situation than he would be, if he had given a promissory note, and through misfortune, had become unable to pay it? In that case, the jury would not reduce the amount of the damages, merely because the defendant had not property enough to pay the whole. But, in the case of any wrong, there is still less reason for any such reduction. In cases of contract, a man must always take the chance of the insolvency of the person with whom he deals; and, though he should never be paid, still he parts with his property voluntarily and takes that chance. But, when one man destroys the property of another, it cannot be pretended that the owner voluntarily gave it up, or consented to run any risk whatever. Being under the protection of the laws of society, he has a right to insist upon having damages for the full amount which the jury shall conscientiously believe to be its value; for, though the wrongdoer may not, at that time, have sufficient property to satisfy the whole judgment, it is very possible that he may have enough at some future time. But, the true reason, it is believed, why such testimony may sometimes be received, is because, if the defendant were very rich, and had committed the injury from jhe insolent recklessness of consequences, which is sometimes seen to accompany the consciousness of being able to respond large damages without difficulty, the court would direct the jury to assess such exemplary damages, as the wrongdoer would feel, and as would serve as a warning to others. The defendant, therefore, upon any surmise that he had acted from any such motive, would be permitted to prove that he did not possess much property, in order to show, that he was not a fit subject from whom to require exemplary damages; but never for the purpose of reducing the damages below the amount of the injury really sustained.

In cases of slander, libel, seduction, assault and battery without any mitigating circumstances as to provocation, oppression of any kind accompanied with an abuse of an authority given by the law, or any contumelious wrong whatever, the jury would do well to make the case of the injured party their own, and not by a mistaken sympathy for a disturber of the public tranquility, add wrong to wrong, by giving a verdict for insufficient damages. For, the ill consequences of such a verdict, are very great; because it does not furnish the redress to which the plaintiff is entitled, but on the contrary injures his character, and lowers him in the esteem of others. It tends also to bring the administration of justice into contempt. Lastly, it leads to violence and injustice two ways; because, others seeing the impunity of the defendant, will not be deterred, but on the contrary will be encouraged in committing similar wrongs and outrages; while the sufferers, seeing that they can expect no adequate redress from the tribunals of the law, will resort to direct violence to revenge them.

3. The right and power of the jury as to their verdicts in criminal prosecutions, &c.

In criminal cases, the trial by jury is intended to afford to the person accused, not only a fair trial, whether innocent or guilty; but it is intended also to furnish, in an especial manner, every reasonable protection against the possibility of being convicted unjustly. Where therefore the jury consists of individuals possessing only a moderate share of abilities and knowledge of mankind, and such a share of integrity as is sufficient to resist the temptations, which may possibly be offered to induce them to pervert justice, if they will pay a proper attention to the proceedings before them, there can be but little probability, that innocence will ever suffer the penalty of criminality, or that legal guilt will ever escape with impunity.

To illustrate the justness of this remark, it will hardly be necessary to do more than allude to the certainty, which is required in the indictment, in describing the criminal charge, without which the prisoner cannot be convicted, even if the jury should give a verdict against him; (See the case of Mr. Rosewell, Infrađź?‰ the challenge of the jury with cause; or, the peremptory challenge, without cause, before mentioned; the inadmissibility of all proof of confessions drawn from the prisoner by promises of favor, or by threats of any kind; the presumption of innocence, with which the law protects the prisoner, and renders it unnecessary for him either to justify, excuse or in any way exculpate himself, until a strong presumption of his guilt, is raised against him by the testimony of witnesses under oath; and lastly, the humane principle, that even if such strong presumption should be raised in the first instance, if the prisoner can, either by other testimony, or by inferences drawn from circumstances satisfactorily proved, or by comparison of facts and conclusions, raise only a reasonable doubt, whether after all, he may not be innocent, the jury, according to the legal understanding of their oaths, will be bound to acquit him. By the English law, which is generally adopted in this country, a general verdict in criminal cases, must be either guilty or not guilty. By the law of Scotland there are three verdicts, viz., guilty, not guilty, and not proven. The last is given in, when there is not sufficient evidence to warrant the conviction of the accused, but the jury entertain doubts of his innocence. In such case, by the common law the jury are bound to acquit. If juries could always be depended on to make a proper distinction in their verdicts, perhaps this must be considered as an improvement on the common law.

It was on a humane principle, though sometimes barbarously abused by arbitrary judges in unsettled times, that the ancient common law did not allow prisoners counsel in capital cases, unless some matter of law, not already settled, should arise upon the facts found. It was supposed they could not need it for the facts; for, it was held, that if the evidence against them was not so clear, as not to be rebutted by any argument, they ought to be acquitted. Where the law applicable to the case, admitted of no doubt, it was the duty of the judges to be of counsel for the prisoner, i. e. to take care to give him notice of every fair advantage he might take, in challenging the jury, &c., and in general to take care that he should not be improperly convicted.

But, on account of the apparent hardship, and the occasional abuses which sometimes took place, the law has been altered. At this day, prisoners both in England and in this country, are permitted to retain what counsel they please, and in capital cases, poor prisoners have counsel assigned to them, on request, by the court.

To return; it is not enough, that the jury, after hearing all the testimony of the witnesses, the arguments of the public prosecutor, the defence of the prisoner both by himself and his counsel, and lastly the charge of the court,—are fully persuaded in their own minds that the prisoner is guilty; it is not enough that the jury, by their own natural sagacity, or, by the ingenious comparison of circumstances by the public prosecutor, are come to this conclusion. For, an opinion that the prisoner is guilty, thus formed, will hardly authorize the jury to find a verdict against him.

It is true, that it is the height of practical sagacity and wisdom, to be able to draw correct inferences from minute circumstances, which escape the observation of dulness,—from a partial view of facts, where it is impracticable to ascertain the whole truth; from premises wholly inadequate to the purposes of demonstration; this however, is only to be considered as a matter of prudence and caution for our own security; but, it would be the greatest injustice to apply such wisdom and sagacity, to the purpose of convicting a prisoner on merely probable surmise, when, according to the true intention of the law, guilt must either be proved to a moral certainty, or, otherwise, must be allowed to escape with impunity. For,

Why is guilt punished at all? Is it not, for the sake of the security of the just? But, unless guilt is demonstrated, then it is possible, that innocent men may unfortunately fall into the same circumstances with the individual convicted, whether he be guilty or innocent in fact, and may have the same arguments from circumstances urged against them, and consequently, in the same way, may be convicted and punished. It is plain, therefore, that where even a guilty person is convicted and punished, without conclusive proof of his guilt, innocence itself is endangered, and the security of good men is not obtained.

In civil actions, if the jury should give a verdict, contrary to the evidence, that is to say, without any apparent evidence at all to support it, (for, it is not enough that it is found against the weight of evidence,) the court will set aside the verdict and grant a new trial. But the jury may give a verdict contrary to evidence if they see fit. See Plowd. 8. Holt, 404. Vaugh. 147.

So, in a civil action, if the jury should give a verdict, contrary to the direction of the court in matters of law, the court will set aside the verdict, and grant a new trial. But, as there are no new trials in criminal cases, if the jury should give a verdict, either against law or evidence, and notwithstanding the instructions of the judge, before it was recorded, to reconsider it, should persist in it, the verdict must stand, and there is no power to call the jury to account for it.

Since therefore this power is confided to the jury, it may not be amiss to consider what is their right and duty in this class of cases. This subject will be most conveniently illustrated by selecting a particular one. Suppose A to be indicted for a crime, and pleads not guilty, and after the witnesses for the prosecution are examined, he or his counsel argues to the court, at the same time requesting the attention of the jury, (as Home Tooke was permitted to do, on his trial for a libel before Ld. Mansfield,) that the facts testified to, do not amount to the crime charged. Suppose that the court charge the law to the jury contrary to the prisoner’s argument; here the jury, if they are satisfied of the truth of the facts, and take the law to be as charged by the court, will be bound to find the prisoner, guilty. If they doubt, or cannot agree with each other, whether the law is correctly charged by the court; or, if they have any mistrust of themselves, that they shall not be able to apply the law correctly to the facts, they may find a special verdict, and thus submit the question of the prisoner’s guilt, to the decision of the court. But if, after hearing the prisoner’s argument, and the charge of the court, the jury should be clearly of opinion, that the law is according to the argument, and the judge’s charge is wrong, it will be jheir duty to acquit the prisoner. If, in such case, they should find a special verdict, they would hardly do right, since they must be pretty sure the prisoner will be convicted, and yet, according to their own opinion, or rather according to the convictions of their own understandings, he is not guilty. If they should ask the court for further instructions in such case, before they made up their verdict, as they ought to do, because perhaps a few words of explanation from the judge will remove the difficulty in their minds, and they should still feel convinced, that the judge did not charge the law correctly, but, from a deference to his opinion, should find the prisoner guilty, they would violate their oaths.

If a barbarous or arbitrary law should be enacted, as for instance, if it should make mere words sufficient to constitute an act of treason, and any person should be indicted on such act, it would be the duty of the jury to acquit the prisoner, if, as in the case supposed, the law were unconstitutional; or, what is the same thing in effect, if the jury conscientiously believed the law to be unconstitutional, however it might be charged by the court. It is in this sense, probably, that the remark of Fortescue is to be understood; ‘that the jury are not bound by the determination of the House of Commons, nor by any law in the world but their own consciences.’ Fort, de. Laud. 117.

A distinction however may be taken here. 1. If the law were made to punish a man for doing anything, which it is his duty to do; or, which it is morally wrong to prevent him from doing; or, for not doing anything, which he ought not to do, the law would be wicked and tyrannical, and such as no government has a right to make; and therefore the jury would do well in refusing to assist in enforcing any such law. 2. If the law should prohibit any thing, which a man would have a right either to do, or to omit, if not prohibited; or, command any thing to be done, which, if not commanded, any individual would, in like manner, have a right, either to do or to omit, and such law is not contrary to the constitution, though the penalty is excessively severe and out of proportion to the offence, still, the jury, in case of an indictment for a violation of it, will be bound by their oaths to convict a person who is guilty of such violation. They have nothing to do with the punishment.

With greater reason they will be bound to convict a person, who has committed an act wrong in itself, in violation of a law which prohibits such act, however severe the penalty may be.

The right of a jury to give a verdict, contrary to the opinion of the court on a point of law, can exist only, where they are fully satisfied that the court is in an error. For, if not thus satisfied, they ought to receive the judge’s charge as correct. But, each juror ought in all cases, especially in capital ones, to act according to the dictates of his own conscience, and on his own moral responsibility in making up his verdict. The prisoner in a criminal case, and the parties in a civil action, are entitled to ‘the exercise of his judgment, unbiased by any consideration, that is not grounded either on the evidence in the case, or the law applicable to it. The jury in no case have a right to decide their verdict by drawing lots; it is always a misdemeanor, (see 1 T. Rep. 113) to do it in a criminal trial would be inexcusable; and in a capital trial would in fact be murderous ; because in this way an individual might be put to death, without any real consideration of his guilt or innocence. It is held, that if they cannot agree upon their verdict, they may agree to find their verdict according to the vote of the major number. See Says. R. 100. 1 Stra. 642. This however must be restrained to verdicts in civil actions, and can hardly be justified in law even there. For, the law requires unanimity in a jury, as a test of the truth and justice of their verdict. It means therefore unanimity brought about by discussion, and the exercise of the understanding. But, the unanimity brought about by putting the subject to vote, is an evasion of the law ; for, this is not brought about by the exercise of the understanding, and it renders the verdict of the majority effectual, which at law would be wholly unavailing.

It has been held, that a jury may give in a verdict contrary to evidence. See Plow. 8. But, this is because it might be supposed, that they formed their verdict on their own private knowledge of facts. But a juror, who should thus bring in a verdict in either a civil action or in a criminal prosecution, would act improperly at least, and perhaps might occasion great injustice. In a civil action, if the jury should bring in a verdict grounded solely on their own private knowledge, ft might appear to be given contrary to, or, without any evidence, and, if the court were of that opinion, it would be set aside and a new trial granted. If there was evidence given on both sides, the verdict would appear to be given contrary to the weight of evidence, and, in this way, though a new trial would not be granted, yet it would tend to bring the administration of justice into disrepute. The same consequence would attend the conviction of a person indicted for a crime, on the private knowledge of the jury. A greater injury however is done here; because the prisoner is convicted on evidence which does not appear on the trial—evidence, of which he has no notice, and consequently has no opportunity to answer. The duty of a juror, who has a knowledge of any material facts, would therefore seem to be, to give notice of it, especially in a trial for a capital offence, so that he may be sworn, and the prisoner may have an opportunity of explaining away his testimony, and perhaps convincing that very juror that he is in an error. It would seem, also, very proper in the jury, in general, if one of their number should attempt to influence the rest by appealing to his own private knowledge of facts, to give notice to the court of the circumstance; for, otherwise, the accused party does not seem to have a fair trial. But, it is held that where a person is about to be sworn on a jury, who has material evidence to give in the case, he ought to inform the court of it, before taking the oath. Sal. 405.

No juror ought ever to agree to bring in a verdict of guilty, against a prisoner, unless he is completely satisfied of his criminality. Though the other eleven are agreed, if their reasonings do not convince him, and he should out of deference to their judgment, though sanctioned also with the opinion of the court, consent to such verdict, the prisoner’s blood, if innocent, will rest upon that juror’s head, and upon his alone; for, the rest conscientiously believe the prisoner guilty, according to the best exercise of their judgment; but he convicts, while he doubts the prisoner’s guilt, and therefore violates his oath, neglects his duty and betrays his trust. Neither ought a juror ever to consent to find a verdict against a prisoner from the expectation, that he will not be capitally punished. For, the substance of the verdict of the jury, when they find the prisoner ‘ guilty,’ is, that he is Proved to be guilty; but, where they find him, ‘not guilty,’ the only rational meaning of the verdict, is ‘that he is not proved to be guilty? though the law permits it to be considered as a proof of innocence, so far that he shall never be tried again on the same charge, though conclusive -evidence of his guilt should afterwards be discovered. If the jury cannot agree, they will be discharged after the court have kept them together long enough to ascertain, that there is no probability that they will agree.

On the other hand, if the juror is completely satisfied of the prisoner’s guilt, and can trace that conviction to the effect of the testimony which has been given on the trial, he ought to find him guilty; without regarding those vain scruples, which sometimes afflict men of great sensibility, when discharging the plainest duty, that though they are fully satisfied, after the most careful scrutiny, yet perhaps they may be in an error. In such case, they should remember, if they are in an error, it is because they are fallible creatures, and not because they have not taken proper pains; but no man can be accountable for any thing more, than the honest exercise of such an understanding as nature has given him.

In all cases, both civil and criminal, if all the jury are satisfied and agreed, as to the facts of a case, but cannot agree as to the law, so that they are unable to make up their verdict, they have a right to call on the court to give them further instructions and explanations as to the law, to enable them to do so; or, they may bring in a written statement of all the facts in the case, which will be reduced into proper form for them by the counsel in the case, under the direction of the court, and conclude with submitting to the decision of the court what their verdict ought to be. By this special verdict finding all the facts, the final decision is submitted entirely to the court; so that if, after finding all the facts, they should conclude by giving a general verdict in favor of one of the parties, or of the prisoner as the case might be, the court would reject the conclusion as void, and would determine for themselves on the facts found in the verdict.

After the jury are agreed, and the foreman has delivered in the verdict, and the jury are asked the final question ‘so you say all, gentlemen,’ any juror may then dissent, if he has any scruple arise in his mind, and the court will then send the jury out again, to see if they can agree. And whatever their first verdict may have been, they are entirely at liberty to alter it as they see fit. This power they retain until their verdict is recorded. And therefore, where two were on trial for a conspiracy, and the jury came in with a verdict of guilty, against one, and were sent out again, because one alone cannot be guilty of a conspiracy, and on their return again, found both guilty, the verdict was held good. See Plowd. 212.

But, after the trial is over, and the verdict is once recorded, there seems to be no remedy, even though they have made a mistake in their finding, and make an affidavit to that effect. For, all mistakes ought to be corrected at the time of trial, and before the verdict is recorded. See 2 T. R. 282. If any alteration should be allowable after the jury had once been dismissed, it would furnish too many opportunities to attempt to tamper with them. It is for this reason, that all representations of jurors, contrary to their verdict, have been censured. See 3 Bur. 1696. This however does not apply to recommendations for mercy, made by the jury after conviction.

Jurors should be careful to attach no weight whatever to suggestions, made as to the probability or improbability that a prisoner, if convicted, will be punished. Their concern is with his guilt or innocence alone, and that question it is their sworn duty to decide, without any reference to the question, whether he will be punished or not, or, what his punishment may be. In a capital case, within the recollection of the present writer, the public prosecutor expressed an opinion in the course of his argument, that the prisoner, if convicted, would not be punished capitally; and the jury found him guilty; but afterwards, eleven of them sent a representation to the Governor, stating that they should not have found him guilty, if they had expected he would be punished capitally, &c.; but their petition was not granted, and the prisoner was executed.

The grossness of such conduct in the jury, is manifest from the consideration, that, unless it can be supposed, that they knowingly brought in a false verdict against him, for whatever reason, they would have found him not guilty, when in their consciences they believed him guilty, merely because they were unwilling, that he should suffer the punishment prescribed by law for the crime proved against him.

With regard to the efficacy of the trial by jury in protecting the citizens from public wrongs, whether consisting in the operation of laws grounded solely in usurpation, or, upon an abuse , of a legal authority; or, consisting in acts of arbitrary power committed by persons in authority, but without any legal warrant, it may be further remarked, that, if acts of oppression should be practiced upon an individual under pretense of a lawful authority, and an action should be brought for the injury, if the oppressor were a person of great political power or influence, it might happen that any one or two individuals, if they had the judicial power of deciding between the parties without the intervention of a jury, might be too much overawed and intimidated by the wrong doer, to do strict justice between them. But an independent jury in any such case, would make the plaintiff’s case their own ; and keeping in mind the principle, that, where one citizen is oppressed, all are threatened, would take care to give a verdict against the defendant, for such exemplary damages, as would teach him, however high his rank might be, that the law is above him.

If the sovereign political power should fall into bad hands, and an attempt should be made to crush all those who were obnoxious to them, by the enactment of highly penal and unconstitutional laws, against acts wholly free from moral turpitude, and only prohibited, because all freedom is dangerous to usurped power, it would be the duty of the jury, by their verdict of acquittal, to rescue the persons accused, and show their detestation of tyranny and oppression.

If the time should ever arrive, when the members of the judiciary shall be dependent for their offices upon the other departments of government, and those other departments shall abuse their authority to violate the constitution, and crush such of the citizens as shall oppose their schemes; and, to carry their designs into effect, shall appoint to judicial offices such of their own adherents as will co-operate with them, by harsh and arbitrary misconstructions of penal laws, it is then that the excellence of this mode of trial, ought to be seen and felt as a guardian and protector of civil and political rights. How far is this supposition justified by the history of the past?

jury_1In the first year of Charles II. while public affairs were controlled by Cromwell, Lieut. Col. John Lilburne was indicted for high treason for publishing certain books and pamphlets, reflecting in the strongest manner upon that usurper. On his trial he made a very bold and eloquent defence, and though the court were unanimous against him, and seemed very desirous that the jury should convict him, yet he was unexpectedly acquitted, to the great joy of the people, who, it is said, shouted for half an hour without intermission, to the great terror of the judges. Within three years afterwards he was banished by a resolve of the Parliament, under pain of death. He was at the Parliament door the day after this resolve was passed, and was ushered into the bar, by the Sergeant at arms. The speaker of the house twice commanded him to kneel to receive his sentence, but he replied that though he submitted to their sentence, he neither could nor would kneel. Being then sent out, he told the Sergeant to inform the speaker, that when he should be brought up to receive his sentence, he should not kneel, if they should order the sergeant to beat his brains out with the mace; because such a gesture seemed to imply a consciousness of guilt. He returned from banishment, and was indicted for it capitally, on the resolve or act of Parliament, and was very unfairly used on his trial, but making an able and eloquent defence, he was again acquitted by the jury. The Parliament seem to have been greatly incensed at this, and passed an order to examine the jurors, and make them give an account of their verdict. They were accordingly examined separately, and their answers were generally such as became men of integrity. The foreman’s answer in substance was, ‘that, in what he did, he discharged his conscience, and that he would give no further answer as to the grounds of the verdict, for reasons best known to himself.’ Four of them answered, ‘ that they did it to satisfy their consciences,’ &tc. One answered, ‘that he was not bound to give an account of what he did in that business, but to God himself.’ Two of them said, ‘that notwithstanding the court told them they were judges of the fact only, they considered themselves judges of the law also.’ One doubted, whether John Lilburne, named in the act of Parliament, was the same John Lilburne, who was indicted, having never seen him before, &c.

It was soon found, therefore, that jury trials were not so much under the control of the powers of the government, that favorable results could always be depended on with confidence, even when the influence of the government was seconded in the strongest manner, by that of arbitrary and prejudiced judges. Yet, it is not to be wondered at, if in times preceding the revolution in England, when James II. abdicated or was dethroned, and William and Mary succeeded, the trial by jury was found a very inadequate protection for innocent persons, who had fallen under the displeasure of the court. For, in those times, the fairness of the trial depended almost entirely on the presiding judges, because they exercised a power over the jury, that has long since been done away. The jury therefore, being overawed by the judges, who sometimes did not hesitate to threaten those of the jury, who would not agree to such verdicts as they required, were often induced to convict persons of crimes, which were not sufficiently proved. For, how could a jury, who were not well acquainted with the law, who were exposed to the highly penal and infamous punishment of an attaint, for a false verdict, or, as it has sometimes been held, for a verdict contrary to the opinion of the court; and, beside that, who were liable to be kept without food and refreshment at the discretion of the court, if they did not agree, as also to be carried round the circuits in a wagon to attend the court until they did agree, exhibit the same independence as in later times, when all these absurdities are done away? Yet, though they took the further illegal advantage of controlling the sheriff in the return of the jurors, as sometimes was done by Cromwell, it so happened, by means of the prisoner’s challenges, and because the character and opinion of every individual juror could not be certainly known to the sheriff, that, even in the worst times, there would occasionally be found one or more jurors, too honest and independent, to be either corrupted or intimidated, into a false and iniquitous verdict.

It was in consequence of such disappointments, as it is presumed, that very soon after Lilburne’s first acquittal in 1650, it was thought a politic expedient to create new courts with the style of high courts of justice, which had authority and was made use of, to determine cases of treason, &c. without the intervention of a jury. Under this tribunal, though the number of commissioners amounted to forty, there seems to have been no difficulty in convicting any person on almost any kind of evidence, as a quorum consisted of seventeen, and the opinion of the majority was decisive. The proceedings were arbitrary and cruel, to a high degree. The first high court of justice, however, was erected for the trial of Charles I. and gave rise to the rest.

Among those who suffered capital punishment under this tribunal, and whose guilt is not satisfactorily made to appear, because they had not a fair trial, were Col. Andrews, Ch. Love, J. Gibbons, Dr. Hewit, Sir Henry Slingsby, and many others. John Mordant was acquitted, there not being a majority of the judges against him, and some being bribed. After the restoration of Charles II. the trial by jury was again permitted in such cases. But here the trial by jury was again found insufficient to protect the innocent, on account of the unfairness with which it was usually conducted in the time of Ch. Jus. Jeffries. Certainly it was a rare instance, indeed, when one indicted before the court of King’s Bench, escaped, while this judge presided. He seems almost invariably to have had a strong bias against the prisoner, from the beginning of the trial; and being a man of great abilities, and assuming the part of king’s counsel and uniting it with the authority of chief justice, he generally refuted or silenced the arguments of the prisoner, and overawed or convinced the jury with equal ease, whether there was or was not sufficient legal evidence of guilt. In illustration of these remarks, one or two instances may be given. In 1681 Stephen College was indicted for high treason, and, if allowance were not made for the age, the perusal of his trial, would be sufficient to give any one a distaste for the trial by jury. Because it seems impossible not to come to the conclusion, that he was the innocent victim of perjury in the witnesses, cruel and barbarous oppression in the court, and gross servility or excessive stupidity in the jury.

In the trial of Count Coningsmark and three others in the same year, for murder, in which there seems to have been no doubt that Coningsmark was the instigator, and that the act was perpetrated by one of three others in the presence of the rest, by his procurement, the Ch. Jus. Jeffries, for whatever reason, was resolved to save Coningsmark from conviction. For this purpose, evidence was withheld from the jury which would have tended to clear some of the prisoners, but would have endangered the Count. But no one can read the trial and doubt his guilt. In order to favor him the more, after the testimony was closed two of the prisoners who were foreigners and did not speak English, were not asked what they had to say in their defence, from an apprehension that it might lead to the Court’s conviction. The jury therefore found him not guilty; but the three others were convicted and executed, one of whom, it is not unlikely, was innocent, or at least wholly ignorant of the intention of committing the crime of murder.

Joseph Hayes was also indicted for high treason, before that court; there was hardly any thing, which would be called legal evidence, offered against him. He conducted his trial with great boldness and spirit, and, notwithstanding a violent charge against him by Ch. Jus. Jeffries, was unexpectedly acquitted by the jury.

The trial of Thomas Rosewell, a dissenting Clergyman, for high treason, the overt acts of which consisted in delivering two discourses in the presence of a few persons at a private dwelling-house, and which discourses were said to contain the crime of imagining the king’s death, deserves a more particular notice. The indictment against Mr. Rosewell was drawn up in Latin, agreeably to the law at that time. The treasonable words, charged to have been uttered by Mr. Rosewell, without the innuendos to point the application of them, were as follows:

‘That the people made a flocking to the king, upon pretense of healing the king’s evil, which he could not do; but we are they to whom they ought to flock, because we are priests and prophets, who can heal their griefs. We have now had two wicked kings together, who have permitted popery to enter under their noses, whom we can resemble to no other person but to the most wicked Jeroboam; and, if you will stand to your principles, I do not fear but we shall be able to overcome our enemies, as in former times, with rams’ horns, broken platters, and a stone in a sling.’

The witnesses for the crown were three women, whom, Mr. Rosewell, being conscious of his innocence of having ever uttered the expressions charged against him in the indictment, and apprehending that they would swear to the same story if questioned in each other’s presence, requested to have examined apart. This was accordingly done, but they agreed in their testimony in a surprising manner, though Mr. Rosewell cross-examined them with no small ingenuity. There can be no doubt therefore, that Mr. Rosewell did deliver two discourses at the times and places testified to by the women; indeed, Mr. Rosewell never denied so much, and that the words charged in the indictment, were what they supposed Mr. Rosewell to mean.

After the evidence of the crown was closed, Mr. Rosewell, who was a good scholar, requested that the same passage in the indictment, just now quoted in English, should be read to him in the original latin, which was done as follows:

—* Quod populus coadunationem fecere (anglice, ‘made a flocking’) dicto domino regi nunc, sub pretextu sanandi morbuin regni (anglice, ‘ the king’s evil’) quod ipse facere non potest; sed nos sumus illi ad quos illi debent accedere, (anglice ‘ flock to,’) quia nos sumus sacerdotes et prophets, qui precibus dolores ipsorum sanaremus. Nos habuimus nunc duos iniquos reges insimul, qui permiserunt Romanam superstitionem (anglice, ‘popery’) ingredi in eorum conspectu (anglice, ‘under their noses ‘) qui assimilari possunt ad nullam personam, nisi ad nequissimum Jeroboam.—Et si ipsi ad fundamentalia ipsorum permanerent (anglice, ‘would stand to their principles’) ipse non timebat, quin ipsi inimicos suos vincerent, sicut in pristino tempore cum cornubus arietum, patinis fractis (anglice, ‘broken platters’), et lapide in funda; (anglice, ‘sling ‘) &tc.

Mr. Rosewell before beginning his defence, made some exceptions to the indictment; and the following dialogue ensued between him and Ch. Jus. Jeffries.

Rosewell. If it please you, my lord, that which I object against, and desire to be satisfied in by your lordship, is this; I am charged with speaking words about flocking to the king to cure the king’s evil; and it is in the indictment called, ‘morbus regni anglici,’ that is, the disease of the English kingdom.

Lid. Ch. Jus. Jeff. No, no; it is morbus regni, anglice, ‘the king’s evil.’

Ros. I do not understand how ‘morbus regni’ can be ‘the king’s evil.’

Ld. Ch. Jus. Therefore, because there is no apt word in the law for that distemper, they help it up by the word ‘anglice,’ to show what they meant.

Ros. But, my lord, I understand there are proper words for the disease; as struma and scrofula; those are proper words for it; not ‘morbus regni.’

Ld. Ch. Jus. Not at all in law; those may be the words used among physicians; but in legal proceedings, we are to keep up exactly to the legal names and phrases; and where we have not an usual word, then we help it up by anglices, and so we here express that very distemper, which is called by the name of the king’s evil, by a word framed as near to a law phrase as we can; and to show our meaning in it we add anglice, the king’s evil.

Ros. My lord, is that the phrase that is proper for it in law?

Ld. Ch. Jus. Yes, yes; it is very well expressed to show what is meant.

Ros. But, my lord, ‘morbus regni’ is in English, properly, the disease of the kingdom.

Lid. Ch. Jus. It is so; the disease of the kingdom; if they had gone no further, but left it there, it might have had such an interpretation put upon it. But because the words are so ambiguous in Latin, they are reduced to a certainty, by putting an anglice to them.

Ros. I thought it had been ‘anglici.’ My lord, there is another phrase that I object against; k says ‘ nos habuimus nunc duos iniquos reges insimul;’ My lord, this cannot be understood of two kings, one after another; but ‘ insimul’ makes it to be both at once.

Lid. Ch. Jus. No; we have had now together two wicked kings.

Ros. That we do not use to express so in Latin.

Ld. Ch. Jus. The words do thus sound in English.

Ros. There are two words, insimul and nunc, that do signify the’ present time. My lord, I am now only speaking all this while upon the hypothesis, that these words were spoken by me; for I still do, and always must deny the thesis.

Ld. Ch. Jus. We take it so.

Ros. It should have been successive.

Ld. Ch. Jus. Then it had not agreed with your words. For the witnesses swear that you said we have now had two wicked kings together, and not successively.

Ros. If that be an anglicism, this cannot be true Latin.

Ld. Ch. Jus. Nay; if it be a blunder in the Latin, it was a blunder of your making; for you spoke it so in English, and the indictment in Latin must exactly pursue the English.

Ros. Then, my lord, here is another expression, that they suffered ‘ Romanam superstitionem,’ ‘ Popery’ to come in.

Ld. Ch. Jus. Aye; is not that well expressed?

Ros. My lord, there may be superstition in the worship of the Church of Rome, and yet not be the thing we call Popery.

Ld. Ch. Jus. There may so, you say right; but then this comes under the same reason, as the former phrase you objected against,’ morbus regni.’ Because ‘ Romana superstitio,’ is such a general word, and because there are several superstitions in the Romish Church, abundance of them; and this may make it uncertain; and because we have no other word to express what we call Popery by, therefore there is an Anglice put in, to show what is meant.

Ros. Then, my lord, it is said, ‘ in eorum conspectu,’ is that right, my lord?

Ld. Ch. Jus. Yes, Anglice under their noses.

Ros. That is in their sight.

Ld. Ch. Jus. Pray, how would you put that in Latin, under their noses.

Ros. My lord; if I should speak according to the other parts of the Latin of this indictment, which your lordship says must exactly pursue the English, I would render it, ‘ sub naribus illorum.’

Ld. Ch. Jus. Such people suffer conventicles under their noses, ‘in eorum conspectu.’

Jus. Holloway. It is not your nose, that sees.

Ld. Ch. Jus. Suffer rebellion under your noses; are these things, ‘sub naribus,’ or ‘ in conspectu?’

Ros. My lord, this could not possibly be spoken of the late king and this king; when the precedent king died a professed zealous protestant, and his present majesty has so often, and earnestly declared against it.

Ld. Ch. Jus. We know that very well; but yet withal we know, it was the pretence of Popery and arbitrary power, and those things, that brought that blessed martyr to the scaffold; and the great cry now at this day, by all factious and seditious busy fellows, is against Popery; as if it were just breaking in upon us, and the government abetted it; when it is all false, nothing more untrue; the indictment calls it so, says these words are spoken ‘/also et malitiose;’ and all treasons are so.

Ros. Then, my lord, there is another thing, ‘ si ipsi starent ad fundamentalia eorum,’ Anglice, ‘ would stand to their principles or principals;’ for, I know not how it is in the indictment. Pray, my lord, how comes ‘ fundamentalia,’ to signify, ‘principles.’

Ld. Ch. Jus. Their principlesj that is, their foundations or fundamentals. ‘If the foundations are destroyed, what can the righteous do?’ says the Psalmist. The Latin bible expresses it by ‘fundamentalia.’

Ros. Then it is, ‘ si ipsi’ in the third person ; now my lord, in common sense, that must needs refer to the two wicked kings that were spoken of just before, or to the king and his subjects spoken of afterwards; and then sure it cannot be treason.

Ld. Ch. Jus. No; ‘they,’ that is, I and you that are here. It was spoken to your congregation. If they would stand to their principles; then come ‘the broken platters,’ &tc.

Ros. If it were spoken to them and of them, it must have been ‘ you ‘ or ‘ we.’ Then, it is added in the end, my lord, ‘fractis patinis,’ ‘ broken platters,’ your lordship lias remembered me of that word. My lord, I did hear, that Mrs. Smith, did swear at Kingston assizes, it was ‘pewter platters.’

Ld. Ch. Jus. I do not know what she swore there; now I am sure she swears as it is in the indictment, &tc. &c.

After some further criticisms, Mr. Rosewell commenced his defence, and, that the ridiculous expressions charged against him and absurdly made the foundation of an indictment for high treason, were never used by Mr. Rosewell, was conclusively proved by the testimony of a great number of witnesses, who agreed in their account of the discourses, denied that he uttered the words charged, stated the language which he did use, and made it quite clear, that it was entirely owing to a misapprehension of his meaning, that the women testified as they did. For, according to these witnesses of Mr. Rosewell’s, some of whom, being in the practice of taking notes, had committed to writing some parts of his discourses, what he really did say, was in substance as follows, and was delivered by him while expounding the 20th chapter of Genesis. After reading some of the first verses of that chapter, he took occasion to observe, from the conduct of Abraham there mentioned, that a good man might fall into the same sin, again and again. One instance, which he mentioned was that of Jehoshaphat, who sinfully joined with two wicked kings, first with Ahab, and afterwards with Ahaziah. On the seventh verse, he observed that the prayers of the prophets have been very prevalent for the healing of others. He instanced the prophet who rebuked king Jeroboam, and when the king’s hand became withered, because he threatened the prophet with it, and the king intreated the prophet that it might be restored, it was healed at his intercession. Mr. Rosewell in his discourse then quoted from an annotator on the bible, ‘that a godly man’s prayer is a sovereign cure of the king’s evil,’ not meaning the scrofula; but any disease which a king might happen to have, &c. There was nothing said about ‘ flocking to the king ‘ at all.

In his second discourse, he expounded Heb. 11. v. 12 which alludes to Abraham’s having a son in his extreme old age, from whom a great multitude of descendants sprung. He took occasion to observe, that God could effect great matters by very small and improbable means. He instanced the throwing down of Jericho by the sound of rams’ horns, the destruction of the Midianites by Gideon, with a few broken pitchers, and the killing of Goliath by David with a sling.

It seems probable, these women, immediately after they heard these discourses of Mr. Rosewell, had conversed together in relation to them, and had agreed in putting their own erroneous interpretation upon them, and through the effect of imagination, had come to the belief that he had actually made use of the expressions charged, because they expressed the meaning, which, on a conference with each other, they concluded was intended by Mr. Rosewell. Mr. Rosewell’s loyalty and innocence of any treasonable intention was established in evidence by a great number of witnesses, who testified particularly to his uniform practice of praying publicly for the king. On one occasion he was overheard praying for him in secret prayer, by one of his servants. He was however found guilty of high treason, and would have been executed, if there had not been a want of technical certainty in the indictment, in describing the charge. As soon as Mr. Rosewell made the exception, it was readily entertained by Ch. Jus. Jeffries, who stood firmly by the law, and seemed disposed to sustain the exception. But, in all probability, it was thought to be bad policy to let a prisoner off, by a motion made in arrest of judgment for a defect in the indictment, which, it does not appear, could have been avoided, and Mr. Rosewell was therefore pardoned.

After the exception to the indictment for want of certainty, was made by Mr. Rosewell, the Chief Justice assigned Mr. Pollexfeu to be his counsel to argue the motion in arrest of judgment; Mr. Pollexfen then moved for a copy of the indictment, because it might be necessary to know its precise tenor. The Ch. Jus. would not grant it, but expressed his opinion of the unreasonableness of withholding it, in the following terms.

‘Why look ye, Mr. Pollexfen,—If you speak to me privately as to my own particular opinion, it is hard for me to say, that there is any express resolution of the law in the matter; but the practice has always been to deny a copy of the indictment. And, therefore, if you ask me as a judge, to have a copy of the indictment delivered to you in a case of high treason, I must answer you, show me any precedents where it was done. For, there are abundance of cases in the law, which seem hard in themselves; but the law is so, because the practice has been so, and we cannot alter the practice of the law without an act of parliament. I think it is a hard case, that a man should have counsel to defend himself for a two-penny trespass, and his witnesses examined upon oath; but, if he steal, commit murder or felony, nay, high treason, where life, estate, honour, and all are concerned, he shall neither have counsel, nor his witnesses examined upon oath; but yet you know as well as I, that the practice of the law is so; and the practice is the law.’

It is very plain from many’other cases, besides those which have been named, that it is too much to expect of the trial by jury, that it should always guaranty a fair trial to the prisoner, even if the jury are free from all responsibility for the correctness of their verdict, unless the prisoner has secured to him, the right to a copy of the indictment, that of being heard by his counsel without any restrictions whatever as to questions of law; the right to compel the attendance of his witnesses, and that of having them put on oath, all which were formerly withheld.

But so long as juries shall be protected in the free exercise of their understandings, as they now are in this country, it will be impossible for any government to practise any very gross oppression upon the citizens in general, under the forms of legal trials.

It is on this account, that the people should carefully guard this mode of trial from change or alteration. For, as it is one of the strongest safeguards of the civil rights of the people; it will be one of the first upon which lawless power will desire to lay its hands, under the pretext of improvement. But, here at least, it is hoped, the hand of innovation will be prevented from any modifications which will affect its sense of common interest, its impartiality and independence.

It is true, juries are very properly under the control of the court in many respects; and may be punished for a contempt, if they neglect or refuse to perform their duty; if they refuse to submit to the lawful direction of the court as to their behaviour during a trial; as, for example, if they should refuse to como in or to go out at the request of the court, or should persist in disturbing the course of a trial by grossly disorderly conduct, persisting in asking illegal questions after notice from the court, or any other similar absurdities or improprieties. And therefore it has been held, that, if the jury separate improperly, they may be punished at the discretion of the court, as for a contempt. 2 B. & Al. 462. So, if they should eat or drink without the direction of the court, before finding their verdict, even if it be at their own expense; but, for a stronger reason, if at the expense of one of the parties. See Vaugli. 153. In Plowd. 518, a case is mentioned of a juror, who was fined twenty shillings for having sugar candy, he. found upon him. So, they are fineable, if they are unlawfully dealt with. See 1 Dyer, 55. pl. 8. And a juror who has been challenged and taken from the pannel, is punishable for speaking with the rest after departure from the bar. 2 Ro. 85.

But; juries are left entirely free from any other motives to agree upon their verdicts, than those of reason and conscience, and a regard for truth and justice. Where there is no probability that they will agree, it would be an act of oppression to keep them together an unreasonable time. And there is no reason to do it in modern times; since it seems to be quite settled, that even in a capital case, if the jury cannot agree, they may be discharged, and the proceedings may be repeated before another jury, toties quoties, until a jury can be found who will agree in their verdict.

It ought not to be dissembled, however, that doubts have been entertained, whether in general the merit of this popular mode of trial is not greatly overrated. On this account it was intended to notice some of the exceptions, to which it seems most exposed. But, as this chapter has already overrun its assigned limits, it must suffice merely to allude to some of the more prominent ones, and to submit them without comment to the intelligence of the reader.

1. It has been thought incongruous, that though juries have no adequate knowledge of the law independent of the charge of the court, yet they may, if they please, decide directly contrary to it; and thus, while they have not discernment enough to do right, they are entrusted with a power to do wrong.

2. Where damages are certain, all juries must decide alike; when they are uncertain, no two juries would give the same verdict.

3. In cases, where questions of party politics have been brought up, it has frequently been found, that the jury has divided in opinion according to the politics of the jurors.

4. In cases where local interests, or popular prejudices or feelings, are concerned, a stranger, or one who is not of the tribe or clan, must rest satisfied with very meagre justice.

5. Juries are affected by circumstances of pomp, display, plausibility, vain glory; and are influenced by eloquence, authority and reputation, as much as by considerations of truth, and justice. It is easier to persuade them, by an appeal to their sympathy, than to convince them by argument.

6. They are usually more merciful than judges, though not always; but not so just. Yet the jury decides whether a crime has been committed or not, which would seem to require the most exact justice; while the judge frequently determines the amount of punishment, which would seem to afford an opportunity for the exercise of mercy.

Whatever may be thought of these exceptions, it is clear that the value of the trial by jury, must always depend upon the degree of virtue and intelligence prevalent among those citizens, from whom juries are selected.

Continued in CHAPTER VI: Of the Rights of Witnesses.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers

libel-law_1The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

PART II; OF SOME PARTICULAR RIGHTS

CHAPTER IV: Of the Law of Libel in relation to Public Officers, &c.

Any species of publication, of a more fixed and durable nature than oral communications, which are merely slanderous, tending either to bring the government, or the rulers for the time being, or public officers in general, or private individuals, into hatred, contempt, or ridicule, is a libel, and is generally actionable at the suit of the party injured, or indictable as a public offence.

It is actionable, on account of the damage which the party libeled, sustains in consequence of it; and therefore where the facts charged in the publication are true, there is generally no redress by action, unless perhaps in the case where personal defects or deformities are maliciously made sport of, where it is presumed the humanity of the law would not permit the truth to be a justification.

A libel is indictable, because of its tendency to lead to the breach of the peace. At common law, therefore, the truth of the libel was never considered as a justification, because the tendency to a breach of the peace would be the same, whether the publication were true or false. It is on this account^ that a libel on the memory of a person deceased, is held to be a libel, because it has a tendency to excite the feelings of his children or kindred, and leads to acts of violence. If, however, a publication should be written as a matter of history and with a proper regard to historical or biographical truth, and without any malicious intention of defaming the dead, it would be justified, notwithstanding the facts which it contained, might impeach the character of the deceased.

In the case of the Commonwealth v. Clap, Parsons, Ch. Jus., assigns another reason, why the truth of a libel ought not to be received as a justification on an indictment. If the law permitted the truth of the libel to be given in evidence on an indictment, the effect would be a greater injury to the party libeled. For, he is not a party to the prosecution, nor is he put on his defence, and the evidence at the trial might more cruelly defame his character than the original libel. See 4 Mass. R. 169. Because, he could have no opportunity to call witnesses to prove the falsehood of it. In general, a libel in a letter sent to the party himself, is not actionable; though there are contrary decisions. See 1 Term R. 110. 2 Esp. R. 625. 2 Starkie, 245 : but it may be punished by indictment, on account of its tendency to produce a breach of the peace. Ibid.

bloggers-beware-libel-lawsuitsSubject to these restrictions, it is both actionable and indictable as a libel, to charge a person with any act which is punishable as a crime; or, with criminal or vicious practices or propensities; or, with being a man of bad character or principles. So, it is libelous to reflect on him for any personal defect or deformity; to apply to him any contumelious or abusive epithet, as coward, villain, poltroon, &tc.; to miscall him in his business, if done maliciously, for the purpose of degrading him, as to call a shoemaker, ‘ cobbler,’ &sc.; to charge him with having, or having had, any disgraceful disease. So, in general, it is libelous to charge a man with being deranged in mind.

To publish of a member of congress, who had left his seat in congress and accepted an office under the state government, ‘ He is a fawning sycophant, a misrepresentative in congress, and a grovelling office seeker; he has abandoned his post in congress, in pursuit of an office—was held libelous;’ and without doubt either of the propositions contained in the above sentence, is sufficient of itself to constitute a libel. See 7 Johns. 264.

In the case of Stow v. Converse, it was held, that—

To ascribe to a person the expression of any blasphemous sentiment, or one ‘ irreverent toward the Creator and Governor of the world, and so analogous to the modes of thinking habitual to unbelievers and profligate men, (as that contained in the libel,) and which would disgrace any person who is not a professed infidel, must be considered libellous, if false; because, if believed, it can scarcely fail to deprive him of the esteem of mankind, exclude him from intercourse with men of piety and virtue, and render him odious and detestable.’ See 3 Con. R. 342.

To charge a senator with concealing from the senate his knowledge, that a bill contained a particular provision, when he knew that they were ignorant of that fact, by which they were led to pass the bill under false impressions, and under the concealment of what, it was necessary or proper that they should have been acquainted with, was held actionable as libelous. See 10 Johns. 259.

It is held not to be necessary, that the libel, in plain and express terms, should charge criminality; but, if it necessarily implicate the conduct of the party concerned or referred to, it is libelous. ‘The contrary doctrine,’ in the words of Spencer, Chief Justice, ‘in Van Ness v. Hamilton, added to the acknowledged licentiousness of the press, would form a rampart from behind which the blackest scurrility, and the most odious recriminations might be hurled on private character with impunity, and would indeed render the press both a public and private curse, instead of a blessing.’ See 19 Johns. 372.

It is not necessary to constitute a libel, that it should be either written or printed. To set up any disgraceful emblem or symbol, having a personal application is libelous, and is actionable as well as punishable by indictment. Thus to hang a person in effigy; to paint or engrave a caricature of him; or, to exhibit it, or to expose it for sale, is libelous, and actionable and indictable as such, both in the painter and engraver, as well as in the booksellers, whose shop windows are disgraced with such exhibitions. From the instances last mentioned, it is apparent, that it is not the first contriver, inventor or author of the libelous publication, alone, who is punishable for a libel, by action or criminal prosecution; but every one, who, in any respect takes an active part in giving it publicity, is liable. And therefore, where one person posted another in a newspaper, by a letter addressed to him, and subscribed with the writer’s name, charging the person addressed with being a man destitute of honor and courage, it was held that the editor of the newspaper was answerable for the libel. The reason is, that the author may be a vagrant; he may be out of the reach of process, or he may elude it; or he may be irresponsible; and, if the editor were not answerable, the person libeled would be without redress. So, it was held to be no legal excuse for a printer, in a civil action for a libel, that the libel was inserted and paid for as an advertisement in his paper, by one who subscribed his name to it. A printer, who, for so small a consideration, can consent to prostitute his paper for the gratification of private malignity, deserves no better. See 3 Yeates. 518.

In cases of this kind, it is recommended to the person injured by a scandalous libel, to make no inquiry for the author of the libel, but to commence his prosecution against the publisher of it. For, he who publishes a libel against his neighbor, without having previously ascertained the truth of it, though he may not be the inventor, ought to be held answerable for all damages arising from the calumny, which he has assisted to circulate. To prosecute the publisher therefore, notwithstanding he may be willing to disclose the name of the author, will be the most effectual way to put a stop to such libelous publications. Because, however large the damages may be, which he may be compelled to pay, he will have no legal right to call on the author for payment or contribution. On the other hand, where a publication will be justified if true, and the public good will be promoted by the publication, it is recommended to the publisher to assume the responsibility of authorship himself; in which case, if he is prosecuted as a libeler, he may do the public a service by proving the truth of the charge; for which purpose, he will have a legal right to resort to the testimony of the person, by whom the facts, constituting the charge complained of as a libel, were first communicated.

libel-law_2In order that an action may be maintained on a libel, it must have a particular personal application to the plaintiff. If it is uncertain who is intended by it, no action can be maintained. But, it is not necessary, that a person should be named expressly; the rule adopted by the court in this respect, is that of common sense: the court and jury will not affect to be blind, where every body else can see who is meant. Where a libel is of a general description, no action can be maintained upon it; though, in many cases, the libeler may be punished for it by indictment. See 12 Johns. 478.

No member of a legislative body will be liable to a prosecution, either civil or criminal, for any thing said or done in the regular course of any legislative proceedings. The freedom . of debate, observation and discussion, in relation to all public measures, and the conduct of men in office, necessary to wise legislation, seems absolutely to require a total exemption from all such liability. This is the law of the English parliament, and is incorporated in the federal constitution, and, it is believed, is the law of all the states. See Starkie on Slander, 200. It has been held, however, that, if a member of a legislative body should publish his speech, it will be subject to the common rules as to libels, and, if any part of the published speech is libelous, he will be liable to prosecution for it. See 1 Esp. R. 226.

In Massachusetts, it is held, that for slanderous words uttered in the house of representatives, but not in the course of debate, an action for slander may be maintained. In the case of Coffin v. Coffin, Parsons, Ch. Jus., in the course of his opinion in favor of the plaintiff, observed,—

‘To consider every malicious slander, uttered by a citizen who is a representative, as within his privilege, because it was uttered within the walls of the representatives’ chamber, but not uttered in executing his official duty, would be to extend the privilege further than was intended by the people, or than is consistent with sound policy; and would render the representatives’ chamber a sanctuary for calumny; an effect which never has been, and I confidently trust, never will be endured by any house of representatives of Massachusetts.’ 4 Mass. R. 31.

In general, any one who republishes a libel, is answerable in the same manner as the original author, or first publisher. The rule proposed by the district court of Philadelphia is, to leave the motives of the republisher to the jury; and if they should infer that it was made without malice, let him be excused, if he gave the name of his author or authority at the time, so that the party injured may seek redress. But, if they should infer malice, let the original publication go in mitigation of damages. See 2 Bro. Penn. R. 79. But perhaps public policy, as well as justice to the party libeled, would rather require that every one, who contributes to the circulation of a libel, whether it arises from malice, or from heedlessness, which frequently does more harm than malice itself, should be punishable for it on a civil or criminal prosecution. For, in one case why should that dull malice, which, incapable of inventing libelous matter itself, basely adopts it at second hand, escape more than the original propagator? On the other, a republication of a slander in a different place, may do ten times as much injury as the original publication. Thus, it is possible that a libel on a gentleman in Boston, published in Georgia, or in any other distant state, may do him no harm; but, if republished in Boston, may ruin him irretrievably; if he is to look for damages in Georgia, he can recover no more than such as he sustained by the publication in Georgia; if then, he can recover nothing for the republication, he must in effect go without any redress at all.

It is held, that the conductors of a press are entitled to no other indulgence, than any body else; and it is no invasion of the liberty of the press, that they should be held responsible for the truth of what they publish. See 7 Cowen, 628.

The case of Southwick v. Stevens, furnishes a salutary warning to those editors of newspapers, who are in the habit of indulging a propensity to sarcasm, misrepresentation and virulent controversy. The defendant in that case, had published a piece in his paper, representing the plaintiff as attacked with insanity, &c. The judge, in his charge to the jury, remarked in substance, that the publication held up the plaintiff in a ridiculous light, and was therefore libelous; that however, it was merely ironical, and in answer to a piece published by the plaintiff, in which the plaintiff had assumed a most singular style; that though libelous, it was written in the course of a newspaper warfare between the parties, and there was strong provocation to induce the ironical matter complained of, and that, in his opinion, the jury ought to find very trifling or nominal damages for the plaintiff. The jury, notwithstanding this charge, found a verdict for $640. On a motion for a new trial on the ground of excessive damages, it was refused of course, because, in cases of personal wrongs, a new trial is never granted for this cause, unless the damages are absolutely enormous. See 10 Johns. R. 259, 449.

It seems no person will be liable to an action for slander or for a libel, for any thing said or done by him in the course of a legal proceeding; as a judge, juror, witness, &c.

And therefore where charges were brought against a commanding officer, before a court-martial, and he was acquitted, and in the opinion of the court delivered on that occasion, the complainant was censured ‘for endeavoring falsely to calumniate the character of his commanding officer,’ it was held not actionable, being part of the judgment of acquittal. 2 N. R. 341. So, no action for a libel, will lie on a malicious prosecution; however, the party injured in this case, has another remedy by a special action on the case for a conspiracy, or for a malicious prosecution, according to circumstances.

In England, where A. brought a writ of forgery against a peer, and the peer was found not guilty, it was held that the peer could not have a scandalum magnatum. 1 Vin. Abr. 390; cites Hob. R. case, 350.

So, where the defendant told a justice of the peace, that he intended to charge the defendant with felony for stealing, and requested a warrant against the plaintiff; the court held that no action could be maintained. Ibid.

It is a general rule, that where the publication is made in support or furtherance of the interests of society, and not wantonly and insidiously for the gratification of private malice, the author is privileged. See Starkie on Slander, 262.

And therefore a petition for a redress of grievances, made to the proper authorities fairly and decently, can never be libelous, however offensive it may be to individuals. Accordingly, it is held, that an application for the removal of a public officer, made to the proper authority having the power of removal, is not a libel. Malice is never inferred in any such case from the mere act of publication. See 4 Serg. and Rawle, 420. This subject was thoroughly discussed in the case of Thorn vs. Blanchard.

In this case, it appeared, that twenty-four of the inhabitants of a county, had presented before the council of appointment of the state of New York, a petition for the removal of the plaintiff, who was a district attorney, alleging in substance that he was under the influence of improper motives, &c., and had been guilty of improper management in his official capacity. It was proved that this petition was read before the council, and that immediately afterwards, the plaintiff was removed from his office of District Attorney. On the trial before the supreme court of New York, the charges contained in the petition not being proved, it was held, that the several matters were sufficient for the plaintiff to maintain his action for a libel. But, the cause being carried up on a writ of error to the court of appeals, the judgment was reversed. Clinton, Senator, in the course of his opinion, delivered in that court, speaks of the judgment reversed, as a hasty decision, ‘ which violates the most sacred and unquestionable rights of free citizens; rights essential to the very existence of a free government; rights necessarily connected with the relations of constituent and representative; the right of petitioning for a redress of grievances, and the right of remonstrating to the competent authority against the abuse of official functions, &c. &c.

In any such case, he considers it incumbent on the prosecutor, to prove express malice; to demonstrate that an evil intention existed; to show in the words of Hawkins, that the petition was entirely false, malicious and groundless, and instituted, not with a design to go through with it, but only to expose the prosecutor’s character, under the show of a legal proceeding.—The presumption in any such case ought to be against malice.—The power of removal is not intended to punish the man, but to protect the public against official misconduct.— Though such council have no power to try; yet they are so far a proper forum, to receive a complaint for the removal of such grievances. He concludes with the remark, ‘that whether the grievances were true or false, innocent or malicious, the powerful and commanding dictates of public policy, must merge and extinguish all individual claims, and all personal considerations. See 5 Johns. R. 508. Yet, it would seem, that if the charges in any such case are wholly without foundation, and express malice can be proved, the pretense of public policy will not protect a libeler from prosecution. In the case of Gray v. Pentland, Tilghman, Ch. Jus. remarks, ‘in order to protect both the public and the officer, an accusation preferred to the governor, or other persons having the power of removal, is so far of the nature of a judicial proceeding, that the accuser is not bound to prove its truth. If the jury are satisfied that it did not originate in malice and without probable cause, the defendant in the action will be excused. Yeates, Jus., in the same case, remarks, that ‘wherever, under the insidious mask of consulting the public welfare, a citizen renders the investigation of the conduct of a public officer, the mere vehicle of private malevolence, and a jury on the trial shall be fully satisfied, that the publication was wanton and malicious, and without probable cause, he has no pretensions to escape unpunished. 2 Serg. and Rawle, 29. This is in accordance with the case cited in 1 Nott. and Mc. Cord, 426, where it was held, that false and malicious charges, made to a colonel of a regiment against a major in the militia, and praying for a court of inquiry, may furnish ground for a libel before a civil tribunal. .

With regard to candidates for public officers, the law contemplates a certain freedom of remark, in discussing their characters and qualifications, which under other circumstances would unquestionably be libelous. This freedom however has its limits, and should always be accompanied with fair intentions, i. e., without malice towards the candidate, and with a view to the public good. To presume both in such cases, is contrary to the general rule in relation to libels, that the falsehood of the libel, will lead to the inference of malice, unless circumstances are proved, to show that there was no malice. Public policy however seems to require, that this indulgence should be shown to the defendant in such case, in order that those persons, who are public spirited enough to oppose the election of unsuitable candidates, may not be deterred by the apprehension of being prosecuted for a libel, from taking the steps necessary to prevent their election, by exposing their characters, or unfounded pretensions.

The general doctrine on this subject has been laid down thus: ‘Where one becomes a candidate for public lienors, he makes profert of himself for public investigation. All his pretensions become proper subjects of inquiry and discussion. He makes himself a species of public property, into the qualities of which every one has a right to inquire, and of the fitness of which every one has a right to judge and give his opinion, &c. &c. See 1 Nott and Mc Cord, 348.

The case of Lewis v. Few ought not to pass unnoticed here, because the doctrine contained in it, is of very frequent application.

In that case, there had been an assembly of the people, for the purpose of selecting a candidate for the office of governor of the state of New York. At that meeting an address to the voters, containing libelous charges against the plaintiff, was read and unanimously accepted, and ordered for publication. The defendant was chairman of the meeting, and signed the address as such; the action for the libel was brought against him alone. Some remarks of the plaintiffs counsel are particularly deserving of attention.

‘It is the undoubted right of the people to assemble together, to discuss public measures, and the qualifications of candidates for public office. They may freely speak and publish the truth and the whole truth; but this cannot authorize them to publish falsehoods, and atrocious libels concerning public candidates. Political meetings are not to be sanctuaries for libelers and slanderers, from whence they may issue their calumnies with impunity.—

—The people, it is true, in their political capacity constitute the sovereign and supreme power of the state, &c. Who are the people? The great body of electors. But any assemblage of citizens, whether electors or not, for the purpose of promoting the election of a particular candidate, and of influencing the electors to vote for their favorite, is not the people, or sovereign, in this constitutional sense. It would be a most dangerous doctrine and productive of the greatest licentiousness, if such meetings were to be considered as the people, and possessing the attributes and immunities of sovereignty, &c. &c. —The situation of public magistrates, and public candidates would be deplorable, indeed, if the law afforded them no protection against the slanders uttered by such meetings. Individuals may be restrained by shame, fear, or personal considerations ; but an assembly will not be influenced by such considerations. A multitude never blush,’ &c.

It was held by the court, that the circumstances of the case were no justification of the libel. See 5 Johnson’s R. 22.

In the case of The Commonwealth v. Clap, Parsons, Ch. Jus., lays down, that publications of the truth, concerning the character of a public elective officer, and relating to his qualifications for such office, made with intent to inform the people, are not a libel. And every one holding such office, may be considered as a candidate for re-election, if he does not disclaim it.”

On the other hand, he considers the publication of falsehood and calumny, against public officers and candidates, as a very high offence. See 4 Mass. R. 169. See also 3 Pick. 304.

In Tillotson v. Cheetham, it was held, that the public character of the plaintiff as an officer of government, is a consideration for giving exemplary damages. 3 Johns. 57.

But, as a publication, though false, will not always be a libel; so, on the other hand, the truth of a publication will not always be a justification of it.

The true legal criterion seems to be, what the jury, under the direction of the court, shall believe to be the intent with which the publication was made. For, it seems, even erroneous statements, made honestly and on occasions, where a person is called upon by duty, or, where he has a legal right to express his opinion, or, where considerations of public policy require there should be no such restraint, will be excused, though injurious to the character of another. The following distinctions in relation to this subject, it is believed, are well founded.

1. Where the publication is false, the jury are generally to presume, it to be malicious, unless the defendant can show it to come within one of the above classes of privileged communications, in which case, to render it libelous, express malice must be proved, either by the declarations of the libeler, or by showing, that he knew he was publishing a falsehood.

2. Where the publication, though scandalous, is true, it is generally held that no action can be maintained for it; though perhaps there may be cases, as, if one should libel another on account of his personal deformity, with which the public have nothing to do, which is equally barbarous and unnecessary. But, for a libelous publication, though founded on fact, a man is punishable by indictment, unless it comes within some of the above classes of privileged communications.

On an indictment for a libel, if the publication is of a scandalous nature, the question whether it is true or false, according to the common law, ought never to be raised. For, if it is a privileged communication, it will be excused though false; and, if it is not so privileged, it cannot be justified, though true. Comments on candidates for public offices, and on the conduct and character of public officers, must be considered as coming within the protection of privileged communications, and will not be libelous without proof of express malice, which will sufficiently appear, if the charges are groundless and without probable cause.

3. Where a publication is false, and does not come within any general class of privileged communications, though the jury ought generally to presume malice; yet, if the defendant can show, from circumstances, that there was no malicious intention, he will be excused on an indictment, and it will go in mitigation of damages in a civil action. In 1 Hawks. 472, it was held, that where a libel is published, malice will generally be inferred from that act, but it may be explained away by evidence, to show, that in fact there was no malicious intention ; and the circumstance should be left to the jury.

4. A publication, relative to a candidate for public office, purporting to relate facts, of a libelous nature, and which the publisher must have known to be false, or which he had no reason whatever to believe to be true, will be presumed to be malicious in either a civil or a criminal prosecution. In 1 Nott and Mc. Cord, 268, it was held that facts and circumstances showing a ground of suspicion, though not amounting to actual proof of guilt, may be given in evidence in mitigation of damages.

5. It is laid down, and seems to be a safe proposition, that a publication simply denying charges imputed to the author, and confined exclusively to that object, is not a libel, whatever its contents may be. 4 Mc Cord, 322.

In 1 Nott and Mc Cord, 348, it is held in substance, that, ‘to be actionable the libel must contain something, calculated to reflect shame or disgrace, or hold up the person libeled, as an object of hatred, ridicule or contempt. That if the words are not actionable per se, their being false and malicious does not always necessarily render them so, even if special damage could be shown, because, if any such damage should arise from words absolutely innocent in their nature, though false (as to say of an attorney, that he was not witty) it would be damnum absque injuria; i. e. such a damage as the law does not notice as a wrong. And therefore it was held in the case cited> that where a private letter to a political friend, merely contained an opinion that a certain candidate for representative to congress, was so frequently affected in his mind, that he ought not to be supported for that situation, it was not actionable as a libel. The discerning reader will perceive in any such case, the necessity of attending to its peculiar circumstances, in order to determine, whether a communication is actionable or punishable as a libel, or not. In regard to all communications which are privileged, it will be most safe to give no more publicity to them, than is necessary to obtain those objects, on account of which alone, the law bestows the privilege. Any further publication will lead to the inference that there must have been some other motive for it, which if not shown to be innocent, the law will presume to have been malicious. It would be contrary to public policy, however, to punish any person as a libeler, merely for expressing in any of the public journals, a sincere belief that a certain candidate for public office, ought not to be chosen on account of certain facts, transactions, &c. 8ic. which the supposed libeler had probable cause to believe to be true. It has been held, however, that a publication of rumors, is not justified by the fact, that such rumors exist. See 1 Wendell, 456. A man’s character ought not to be at the mercy of a mere scandalous rumor, which it is frequently impossible to trace to any responsible source. . Yet in any such case, it seems, that the existence of such rumors will go in mitigation of damages.

In the case of the People v. Croswell, Kent, Jus., concludes his opinion with the following remarks. ‘The founders of our governments were too wise and too just, ever to have intended by the freedom of the press, a right to circulate falsehood as well as truth, or that the press should be the lawful vehicle of malicious defamation, or an engine for evil and designing men, to cherish for mischievous purposes, sedition, irreligion and 1mpurity. Such an abuse of the press would be incompatible with the existence and good order of civil society. The true rule of law is, that the intent and tendency of the publication, is in every instance to be the substantial inquiry on the trial, and that the truth is admissible in evidence to explain that intent, and not in every instance to justify it. I adopt, in this case, as perfectly correct, the comprehensive and accurate definition of one of the counsel at the bar, (General Hamilton,) that the liberty of the press consists in the right to publish with impunity, truth with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.’ See 3 Johns. Cases, 394. This doctrine is expressly incorporated into the statute law of several of the states, particularly New York, Pennsylvania, and Massachusetts.

With regard to other publications, it may be remarked, that it is no infraction of law to publish temperate investigations of the nature and forms of government. Commonwealth v. Dennie, 4 Yeates, 267. Further than this the law does not seem to be judicially settled in this country. In the case of the Commonwealth v. Dennie, just cited, that distinguished writer was indicted for publishing the paragraph contained in the note below, and which, whether the result shall show his opinion to be well or ill founded, must be acknowledged to be equally virulent and unbecoming. Yeates, Jus., in the course of his charge to the jury, remarked, in substance, There is a marked distinction between temperate investigations of the nature and forms of government, and those which are plainly accompanied with a criminal intent, deliberately designed to unloosen the social band of union, totally to unhinge the minds of its citizens, and to produce popular discontent with the exercise of power by the known constituted authorities. These latter writings are subversive of all government and good order. ‘The liberty of the press consists in publishing the truth, from good motives, and for justifiable ends, though it reflects on government, or on magistrates.’ (Gen. Hamilton in Croswells Trial.) It disseminates political knowledge, and, by adding to the common stock of freedom, gives a just confidence to every individual. But the malicious publications which 1 have reprobated, infect insidiously the public mind with a subtle poison, and produce the most mischievous and alarming consequences, by their tendency to anarchy, sedition and civil war. We cannot, consistently with our official duty, pronounce such conduct nonpunishable. The jury brought in a verdict of not guilty. See 4 Yeates, 267.*

* The paragraph for which Mr. Dennie was indicted, was as follows:

‘A democracy is scarcely tolerable at any period of national history. Its omens are always sinister, and its powers are unpropitious. With all the lights of experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France, and terminated In despotism. It was tried in England, and rejected with the utmost loathing and abhorrence. It is on trial here, and its issue will be civil war, desolation, and anarchy. No wise man but discerns its imperfections, no good man but shudders at its miseries, no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically contemptible and vicious, is a memorable example of what the villainy of some men may devise, the folly of others receive, and both establish in despite of reason, reflection, and sensation.’

There is nothing that can be said to excuse or palliate the public avowal and dissemination in this country, of such sentiments as those contained in the concluding part of the above paragraph, in italics. To publish them in periodical publications, seems almost as unjustifiable, as to attempt to overthrow a government with no better pretense, than that it cannot last. If the experiment is making, let it be made fairly.

Much of this writer’s paragraph is sophistical. Our form of government is not the same with the democracy of Athens, or that of Sparta, or that of Rome, and has never been tried either in France or England; and all arguments drawn from experience must fail, when the experiment has not yet been made.

It has been found to have imperfections, it is true; some of which have been remedied by peaceable and deliberate amendments. In other countries a political reform of any kind, has seldom if ever been obtained, without a.revolution, and not always, with one. Our frame of government has within itself a power to reform, without any danger to apprehend a civil war in consequence of it; which there is no reason to fear will ever take place, unless the constitution is either overstepped or violated.

In England it is held, that any person may discuss the proceedings of parliament, even after they have become final, and express doubts as to their wisdom and policy. See Holt on Libels, 135. The law is the same here; this freedom of speech and of the press, without doubt is the peculiar object of the protection of the provision, contained in the first amendment to the federal constitution.

So, it is lawful, with decency and candor to discuss the propriety of the verdict of a jury, or the decision of a judge. But, if the publication contains no reasoning or discussion, but only declamation and invective, and is written not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice in this country, they ought to be punished. See 1 Cowp. 359.

And generally, where any public grievance is exposed, whether by way of petition, remonstrance, &c., it seems, that any language, however strong, which is made use of to express the grievance, will be justifiable.

It is for the interests of literature, that a candid review of any literary work should not be esteemed libelous. Accordingly, in the case of Sir John Carr v. Hood, it was held to be no libel to expose a false literary taste, though by satire, burlesque, and ridicule. In that case it was held, that even a caricature of the author, as an author, and not as an individual, was not libelous; and the general doctrine was laid down, that no publication is a libel, which has for its object not to injure the reputation of any individual, but to correct misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste, or to censure what is hostile to morality. 1 Camp. 350, 354.

It may not be amiss to bear in mind, that a libel is a forfeiture of a bond for good behavior. 3 Yeates, 93.

Continued in CHAPTER V; Of the Rights of Juries.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts

Bill of RightsThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

PART II; OF SOME PARTICULAR RIGHTS

CHAPTER III; Of the Power of Courts to punish for Contempts.

A Contempt of court is some gross act of indignity or affront, offered to the court while in session, and which tends to hinder or disturb the administration of justice, or to bring it into contempt with the people. It may consist either in disobedience to some lawful command of the court, by wholly refusing to comply with it; or, by doing the act commanded to be done, in an improper manner; or, by acting in a manner contrary to some lawful prohibition of the court.

It may also consist in opposing or disturbing the execution of lawful process issued by the court. It is also a contempt of court to abuse its process, by willfully doing wrong in the execution of it, as well as to do any act under the pretense of having authority from the court, but, in fact having none. It is a contempt of court also, in any person duly summoned as a witness and having had his fees tendered, to refuse to appear. So, it is a contempt of court, to practice upon a witness, who has been summoned to appear, whether by threats, bribery, &c. It has been held also, that after a dispute has been left to arbitrators under a rule of court, it will be a contempt of court, if one of the parties, without the consent of the other, should take away the papers from the arbitrators in order to stop proceedings. So, if a sheriff should grant a replevin of property, having express notice that it is irrepleviable. See 1 Wils. 75.

A gross attempt to impose upon the court, is also considered as a contempt; for example, where a man aged sixty-three years, pleads infancy. See 2 Buls. 67.

Most of the instances of contempts specified above, to which many others might be added, are contempts of court merely by construction of law. And it frequently happens that the act complained of as a contempt, is susceptible of such explanations, as to show that no indignity was intended to the court in reality. Where the act is not committed directly in the presence of the court, therefore, it is usual for the court to direct interrogatories to be administered to the party charged; so that he may explain away the contempt if he can, and clear himself; but if the act cannot be thus entirely explained away, he may avail himself of the opportunity, to make such concessions and apologies, as the nature of the case may admit or the court may require.

PrecedentIt must not be understood, however, that the court have any power or authority to compel any person, upon whom an act of contempt has been proved, to answer any inquiries in relation to the subject. Reason and the constitution equally prohibit any compulsion to a person arrested, to force him to answer any questions which may tend to incriminate himself in any case whatever. But, when the act constituting the contempt has been proved, the contempt itself is also so far proved, that, if the person charged with the contempt, either will not or cannot give a satisfactory explanation, and thus show that no indignity was in fact intended, he will be held guilty of the contempt. The administering of interrogatories to him therefore is an act of indulgence; because he is considered already as guilty of the contempt before the interrogatories are administered, and will be punished accordingly, unless he either clears himself of it, or makes a suitable apology.

Where the alleged contempt consists in some act done in the immediate presence ofthe court, the court if they see fit, may direct the offender to be imprisoned at once. Such acts are usually acts of gross indignity, or disorderly conduct, and, for the most part, seem to admit of no^excuse or palliation but that of a total ignorance of the rules of decency and good manners. Such contempts may consist in a direct personal affront offered to the judges either by word or deed; and of course hardly admit of apology or explanation. The court may therefore proceed at once to punish him. Bl. R. 640. Bur. 2129. Another contempt, though of a much less odious kind, is that of shouting, waving the hat, &c. at the termination of a trial, the result of which is particularly agreeable or disagreeable to the bystanders. This however is a contempt of court, for which a person may be committed or fined, unless the court sees fit to accept his apology. See 6 T. R. 630.

Somewhat similar to this class of contempts, is the speaking of contemptuous or reproachful words, of the court to one of its officers while serving process.

At common law, the mere establishment of a court, without any express grant of a power to punish contempts, gives this power by necessary implication j so that there is no tribunal established, however inferior in its nature, but that may justly exercise this power, at least so far as may be necessary to preserve itself from annoyance or disturbance, while in the discharge of its official duties. Accordingly it seems, that every magistrate, while holding a court, has a right to order into custody any person who should disturb its proceedings, or should insult him personally, while in the discharge of his judicial duties, or should commit any such violation of decorum, as would tend to bring him or his court into contempt among the suitors. But, it would seem, that the inferior tribunals of justice, have no authority to commit for contempts, not offered in their presence, but must proceed by indictment. See 2 Bays R. 1. In the case last cited, it was held, that a justice of the peace, while holding a court, may commit by summary conviction any person, who may offer him any insult by word or deed in his presence. It would seem, by the same case, that he is not answerable in an action, for what he does by virtue of his judicial power. But, if he should act corruptly or oppressively in his official capacity, he may be indicted for it, and punished by fine and imprisonment.

It seems a writ of error will not lie on a conviction for a fine on a contempt. See 3 Mod. 28. 1 Sal. 144, 263. Ld. Raym. 454, 1115.

The remedy for a person improperly detained in custody, in any such case, would be to apply for a habeas corpus. But the court would probably hesitate to release the prisoner, unless a clear case was made out in his favor, where he had been regularly committed for a contempt. In the case Yates v. Lansing, before cited, Piatt, senator, remarks, that, ‘ The habeas corpus act is justly prized as one of the bulwarks of freedom, and can be endangered only by its misapplication and abuse. Let us beware, that, in our zeal for securing our personal liberty, we do not destroy the virtuous independence and rightful authority of our courts of justice, and thereby subvert the foundation of social order. So long as our courts are pure, enlightened and independent, we shall enjoy the greatest of earthly blessings, a government of laws; but, whenever these tribunals shall cease to deserve that character, the standard of justice and civil liberty, must give place to the scepter of a tyrant.’

If a prisoner, after an examination on a habeas corpus, should be remanded into custody, it seems to have been the opinion of some, that a writ of error might be brought, and if the judgment should be reversed, he might be discharged by the court having authority to correct the erroneous judgment. But the better opinion seems to. be, that no writ of error will lie upon any proceedings on a habeas corpus. For, if a prisoner applies for a habeas corpus, and it is refused; or, if it is granted, and, on examination the prisoner is denied bail or enlargement, in which case he is remanded of course, there is no such final judgment, as will maintain a writ of error; for, any other court or judge having jurisdiction, may, at discretion, grant another habeas corpus and bail or discharge him upon it; or, if he applies for a habeas corpus in vacation, to one of the judges, and it is refused, he may renew his application in term time, to the whole court. On the other hand, if a prisoner is discharged on a habeas corpus, no writ of error will lie, though if such discharge is erroneous in fact, any court of competent jurisdiction may recommit him. See 6 Johns. 407, 427; cites State Trials, p. 90.

With regard to contempts of court, offered to the superior tribunals of justice, but not in their immediate presence, the law does not seem quite settled. It has been held, that it is a contempt of court either to scandalize the court itself, or any of the parties engaged in a cause, so as to prejudice others against them, before the decision of the case. See 2 Atk. 471. 2 Ves. 321, 520. And in England, where disrespectful words are spoken of the court, there will not be a rule upon the party to show cause why an attachment should not be granted against him, but an attachment will be awarded in the first instance. See Sayer’s R. 114, 47.

Where a person attached for a contempt, declines answering proper interrogatories, or gives an unsatisfactory answer, he will be considered guilty of the contempt; but the mere refusal to answer improper interrogatories, is no contempt of itself. Bl. R. 637. Upon any reasonable objection to answer an interrogatory as it is framed, the court will direct it to be modified, or will accept of a qualified answer to it. See 1 Strange’s R. 444.

Where a writ of habeas corpus issues, a proper return must be made to it, otherwise an attachment will immediately issue against the person to whom it is directed, without issuing an alias. The liberty of the people is concerned here. See 5 T. R. 89.

In England, it seems, a peer must obey the lawful process of the court of king’s bench, or otherwise, the court may award an attachment against him for the contempt. Sayer’s Rep. 50. For the same reason, Lord Preston was committed for refusing to be sworn before the grand jury. See 2 Sal. 278.

In ancient times, in that kingdom, contempts were sometimes punished with great severity; but the contempts so punished belong to a barbarous age, and there is no reason to suppose could have been restrained by milder punishments. For, where the voice of reason, and decency and good manners are disregarded, the moral sense being wanting, an appeal must of necessity be made to the animal part of human nature by corporal punishments, to keep the turbulent and disorderly within proper bounds. Where a party in a cause struck one of the jurors, who gave a verdict against him in Westminster Hall, it was awarded by the king’s council, that he should forfeit his lands and goods, and that his right hand should be struck off. So, where one justled another over, maliciously in the presence of the court, and spurned him with his feet, it was held that he should lose his right hand, though he did not strike the other either with any weapon or with his hand. See 12 Co. 71.

In those states where there is no special provision by law for the punishment of contempts, the courts can only give judgment according to the common law, and punish the offender, by fine and imprisonment.

With regard to imprisonment, it would seem, that the courts have no authority to imprison for contempts for any longer time than during the term of the court, unless in the case of constructive contempts, by refusing to obey an order of a court of chancery, where the judgment would be, that the party be imprisoned until lie obey the order. In the former case, the judgment will be, that the party be imprisoned during the pleasure of the court; but if the court should adjourn without day, without making any order in relation to the prisoner, it would seem reasonable that he should immediately be discharged on a habeas corpus. For, otherwise he might be subjected to perpetual imprisonment. See Lev. 165.

Where any contempt or disturbance is committed in any court of record, the presiding justice may either fine, or commit the person for the contempt. See 8 Co. 38, 6. Owen, 117. Cro. Eliz. 581. And in default of another remedy to recover the fine, it may be recovered by an action of debt. Mo. 470.

Where an important criminal trial is going on, before a court having final jurisdiction, it does not seem quite settled, in this country, how far the court have any lawful authority to prohibit the publication of the proceedings from day to day before the termination of the trial. On such occasions, the curiosity of the public is on the stretch, and unless there is some well-founded objection in public expediency, or in the prevention of injustice to individuals, it ought to be indulged. If the court were able, by prohibiting the publication of the public proceedings, to prevent erroneous impressions from being made on the minds of the people, there would be a plausible ground for the exercise of such a power; but this is wholly impracticable, because the people will inquire of each other, and, there can be no doubt, will receive much less accurate accounts and statements than the newspapers would exhibit, if they were not prohibited to publish the proceedings. If the design of such prohibition were to prevent the jury trying the case, from being influenced by such publications, it would be done much more effectually by directing the officer in attendance upon the jury, to prevent them from seeing any of the daily papers, until their verdict should be given. This would be a very proper measure, and would wholly prevent any possible effect upon their minds, from publications or notices of any kind in relation to the trial, The court, it is obvious, would have a perfect right to adopt this course, from the same authority which enables them to exclude all direct communications between the jury and other persons, on the subject committed to their decision. But, if the court have any lawful authority to prevent the publication of the proceedings on a trial from day to day, on what reason can it be grounded, which will not equally extend to exclude spectators from attending the trial. For, if the court have no authority to sit with closed doors, it is because the people have a right to see that every one has a fair trial, and that justice is properly administered, or, if otherwise, that there shall always be witnesses, by which oppression, partiality or misbehavior of any kind, in judicial officers, may be proved and punished. It is true, that when the evidence of the prosecution has been offered against a prisoner, who may be innocent, he will lie under the ill impression, which it may make upon the minds of those who have either heard it or read it, until he has produced the evidence in his favor. But this he will do immediately afterwards, and, in all probability, it will also immediately be communicated to the people after the lapse of one or two days, at farthest. But the verdict of the jury, it is very apparent can never be affected by it, if the daily papers are kept from the jury; so that in general, the cause of justice is not all concerned in laying any such restraint.

The publication of the records of a court, if done maliciously, and without the consent of the court, is a contempt of a different kind, and seems to admit of no such justification or apology. It is also held to be a contempt of the higher tribunals of justice, and punishable as such, to prejudice the world with regard to the merits of a case before trial, by publications in relation to it; as if the counsel in a case should publish his brief. Lord Chancellor Hardwicke committed two printers to the Fleer prison, for publishing a libel against parties to a suit then depending, &ic. He observed on that occasion; ‘Nothing is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented; nor is there any thing of more pernicious consequence, than to prejudice the minds of the public, against persons concerned as parties in causes, before the cause is finally heard. That it had always been his opinion, as well as that of his predecessors, that such a proceeding should be discountenanced. But that, notwithstanding it should be a libel, yet, unless it was a contempt of the court, he had no cognizance of it; for, whether it was a libel against the public, or private persons, the only method was to proceed at law. That, upon the whole, there was no doubt this was a contempt of court.’ See 20 Atk. 469. 2 Ves. 520.

With regard to the courts of the United States, the law concerning contempts of court is declared, by Stat. 1831, ch. 98.

In the first section it is provided,—

That the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases, except the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts.

The second and last section provides, ‘that if any person or persons shall corruptly, or by threats or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall corruptly, or by threats or force, obstruct or impede, the due administration of justice therein, every person or persons, so offending, shall be liable to prosecution therefor, by indictment, and shall, on conviction thereof, be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding three months, or both, according to the nature and aggravation of the offence.

The power of punishing for contempts, as it is not denied to the lowest tribunals of justice, it would be absurd to suppose denied to a legislative assembly, when in session, whether belonging to the government of a state, or to that of the United States. In the case of Yates v. Lansing, before the supreme court of errors, of the state of New York, it is observed by Piatt, senator, that ‘the right of punishing for contempts by summary conviction, is inherent in all courts of justice, and legislative assemblies, and is essential for their protection and existence. It is a branch of the common law adopted and sanctioned by our state constitution. The discretion involved in this power, is in a great measure arbitrary and undefinable; and yet the experience of ages has demonstrated, that it is perfectly compatible with civil liberty, and auxiliary to the purest ends of justice.’ 9 Johns. 417.

It is obvious, that this power, to a certain extent, is absolutely necessary to the exercise of all those other powers, with which the people have seen fit to invest the deliberative assemblies of their state and general governments, and the proper discharge of the important trusts and duties, belonging to their respective offices; and so far, must be considered as incidentally conferred by the mere creation of those offices and the assignment of their duties. Every deliberative assembly acknowledged by law, while engaged in the discharge of its public functions, must therefore be considered as tacitly invested with full authority, to take into custody any individual who should disturb their deliberations, by any act of violence, insult, or indecorum, offered in their actual or constructive presence, and keep him in confinement without bail or mainprise, until their meeting adjourns. To admit him to make explanations, by administering interrogatories, or to afford him an opportunity of making an apology, and to discharge him from imprisonment, upon any promises which he may make of good behavior for the time to come, are merely indulgences which they may grant at their discretion, but are under no obligation to do so. For, they have a right to take effectual measures to prevent interruption, and this can be done in no other way than by imprisoning the person of the offender. It is true, they may, if they see fit, direct their officer in attendance to carry him before a suitable magistrate on a complaint for a disturbance of the peace, and compel him to find bonds for his good behavior; but this remedy they have in common with private citizens, and is wholly collateral to the exercise of their own authority. Whether the legislature have an authority to fine for a contempt, does not seem settled, but there is not the same necessity for it, because they may secure their deliberations from disturbance without it, by keeping the offender in custody. If the legislature should adjourn without day, leaving a prisoner in custody, it would seem that he would immediately be entitled to his liberty, because his confinement would no longer be necessary. But, if the legislature have a right to fine and imprison for a contempt, in the same manner as a court of record, then they may imprison for a longer time than that of their own session. The distinction lies here, that where the legislature order an individual into custody for a contempt, it may be done, either as a mere measure to secure themselves from interruption, or, as a punishment inflicted on the offender for his contempt. In the former case, it is not necessary that there should be a formal judgment or decree, that the offender be imprisoned a certain number of days; but, in the latter case, if there is any judgment of imprisonment, the duration of it must be ascertained ; for the law will not permit an indefinite judgment. If the prisoner is fined, the amount of the fine must be ascertained in like manner, and for the same reason; if left uncertain, it would be merely void; or, the payment of the smallest sum imaginable would discharge it. This leads to the final reason, why a prisoner left in custody by the legislature at the end of their session, for a contempt, without any limitation of the duration of his confinement, must be discharged; i. e. because the imprisonment ceases to be lawful, as soon as the authority which imposes it, is determined. As it is considered of great consequence in a free government, that the legislative and judicial powers should, as little as possible, be exercised by the same hands; and as generally there seems to be no reason, why the legislature should have a power to punish for contempts, except that it does not seem consistent with their dignity, that they should be obliged to call on the judicial department for protection, it would seem no more than reasonable, that their power in this respect, should be limited by the necessity to which it owes its origin. Consequently, there seems to be no sufficient reason, why the legislature should ever pass a judgment of fine or imprisonment on an individual for a contempt. To pass such a judgment, is in the first place, to make a certain act a contempt; which, being done by a vote of the house, is an act of legislation, and such a law being passed after the commission of the act, seems liable to the exception of being ex post facto, and consequently unconstitutional. In the second place, the passing of such judgment is a judicial act of course. ‘ The legislature, therefore, so far becomes a court; and the jurisdiction not being defined either by the common law, or by the general, or any of the state constitutions, is discretionary, and may become arbitrary and tyrannical. It is very clear that the legislature have no authority to enact laws, which is not given either expressly or by necessary implication, in the constitution, whence the legislature derives its own existence. Yet a law, though enacted by usurped power, would have one advantage over an arbitrary decree, made for a particular occasion. The former would be certain, and might be known, and the people would be on their guard; but against a decree, grounded on the discretion or will of the house, as shown on a particular occasion, it is impossible that the people should be on their guard. These considerations are sufficient to show, that the legislature have no unlimited power, either to determine the extent of their own privileges by ex post facto laws, or decide from time to time as the case occurs, what shall, and what shall not be considered a contempt. Within their constitutional limits, without doubt, they may enact what laws they judge expedient in relation to both subjects. But, when a case occurs, offenders must be tried by the laws as they existed at the time of the act committed, and if by law it was not a contempt at that time, the legislature cannot, by any decree made afterwards in relation to it, constitute such act a contempt.

An imaginary, though not improbable case, may serve for illustration. Let it be supposed then, that the legislature of a state sit with closed doors, with the view of keeping their deliberations from the public, but the secret is suffered to leak out and is published in a certain newspaper. Suppose the legislature then send for the editor, and require of him to take an oath to answer interrogatories truly in relation to the subject of such publication, &c. and the editor refuses to take the oath, and the legislature commit him for the contempt, or fine him; is there any thing to be said to justify their proceedings? Certainly, nothing at all. For, unless some provision is made in the constitution, whence the legislature derives its authority, or, unless the legislature have previously passed some law making provision in such cases, it will be difficult to show, that the legislature have any power whatever to compel the attendance of any individual, who does not belong to their body, except as a witness on an impeachment. Where the legislature appoint a committee with authority to send for persons and papers, if the constitution and laws are both silent on the subject, it is merely the respect which a good citizen owes his rulers, which induces him to attend their summons, and not any implied authority over him in this respect. For, except in their capacity, as legislators, the legislative assembly have no higher authority than any other assembly of individuals of equal respectability.

When therefore the editor in the case put, is sent for by the house, unless he is summoned in writing, and a sufficient legal cause for his attendance is assigned in his notification, he is under no legal obligation to attend. If he should refuse to attend, therefore, and should be taken into custody, it would be a case of false imprisonment, for which he might have redress against the officer who attached him, and if he were imprisoned for the contempt and disobedience to the legislature, in such case he would be entitled to his release on a habeas corpus before a competent tribunal. For, a citizen can never be adjudged guilty and punished, for a peaceable assertion of his rights. But, on the supposition ^that he submitted to the order of the legislature so far as to attend, and he was then required to answer interrogatories under oath ; if he declined to take the oath, this of itself could be no contempt, unless an impeachment was then actually pending, and he was summoned to give testimony, or unless the legislature has a legal authority to resolve itself into a court of inquisition. For, it will hardly be pretended that, if the legislature should see fit to sit as a court, that they have authority to act in an arbitrary manner, and differently from all the regular tribunals of justice. If, however, the legislature should assume to themselves such a capacity, the person summoned should at least be informed that they are acting as a grand jury, in which case the person summoned to give testimony must submit to take the regular oath. If the editor were then asked, if he knew the author of a certain communication in his newspaper, and answered in the affirmative, and were asked again, who was the author, and refused to answer the question, he could never be punished for a contempt in such refusal, so long as he did not deny that he was the author himself, because the constitution protects every man from all attempts to compel him to give testimony against himself. But, if the legislature were then sitting as a grand inquisition, if the editor should once deny that he was the author himself, he would be guilty of a contempt if he did not answer and tell the name of the author, if he knew it, and were required to do so.

It has been suggested already, that where an individual is attached for a contempt, it is an indulgence shown to him to permit him to clear it by answering interrogatories under oath. It would be a perversion or misuse of this course, to use it as a means of proving the contempt upon the person in custody. It is true, if the act constituting the contempt, is clearly proved by other testimony, and the person in custody refuses to give such explanations under oath in answer to interrogatories, as would show there was no contempt in fact, he will be considered as guilty of the contempt; yet, if there is no satisfactory evidence of such act, he may, if he please, refuse to answer any interrogatories in relation to the subject. He may let the testimony against him remain as it is, without attempting to explain it away, and if there is not sufficient, the constitution will protect him from being compelled to confess under oath, which would be the consequence of answering interrogatories. As a matter of prudence, therefore, a person brought before the legislature for examination, should, before he takes any oath, ascertain for what purpose the oath is to be taken and the examination made, and whether his testimony is wanted to bring others to justice, or whether he is called on to answer interrogatories in relation to some supposed or alleged contempt in himself. To decline to take the oath until he is satisfied in relation to these particulars, ought not to be considered as a contempt, because it may be necessary for the protection of his own legal rights.

In the case put, if an editor is asked the single question, who is the author of a certain communication, and answers, that he does not consider himself bound to answer the question, without more, it seems difficult to make a contempt of it; for, if he is the author, he is protected by the constitution from having the confession extorted from him, and it would be absurd to suppose, that in order to avail himself of this protection, he must first confess his guilt to the court, to show that his case comes within it, by intimating that he is not bound to incriminate himself, &c. These few remarks are made here, because an individual taken unawares, or at short notice, and brought before the legislature, can hardly be expected to have the same self-possession, as when standing before the common tribunals of justice, with retained counsel, perhaps the best guardian of his civil rights ever devised, sitting by his side.

In the case of Anderson v. Dunn, it was held that either house of congress may arrest, at any place within the United States, any person who is guilty of a contempt to them, during their session, and imprison the offender until the end of it. See 6 Wheat. 232. The offence in this case, did not consist in occasioning any disturbance or direct interruption to the deliberations of congress, but, in offering a bribe by letter to one of the members. The power claimed and exercised therefore, was not limited to such direct contempts as might be offered to the house in their presence, but was extended to acts done out of the house, and where the offender might be at the utmost limits of the territory of the United States. It is impossible therefore but that such claim of power, where the occasions for its exercise, depending upon the mere discretion of congress to be ascertained by a vote, are indefinite and wholly unascertained by law, must excite great jealousy. For, in the first place, any individual may be brought from any part of the United States, in the custody of an officer, for any act whatever, which either house of congress may consider to be a contempt; and if an offer of a bribe to a single member is a contempt, what is to prevent the application of a similar principle, to other acts committed upon individual members? It has never been contended, that a libel on a member of the legislature is a contempt to the whole legislature, and yet it is not impossible, that some legislatures may vote it to be so. But suppose congress should see fit to consider some severe animadversions on their political management, as a contempt offered to them, will it be contended, that they have a right to take the offender into custody from a distant part of the United States, to be tried before themselves, and punished by imprisonment during the sitting of congress, when the constitution guaranties to all persons accused, 1. a right to a speedy and public trial, 2. by an impartial jury, 3. of the state and district, wherein the crime shall have been committed? Certainly, if congress has this power, all these safeguards, provided by the constitution for the liberty of the citizens, become wholly unavailing. For, if congress have a right to punish an act by imprisonment, then such act must be a crime, and the party cannot legally be punished without a legal trial. But, as congress may sit with closed doors whenever they see fit, if they try the accused in this manner, he cannot with propriety be said to have a public trial. The constitution guaranties an impartial jury; but, in this case, the contempt is alleged to be committed against congress, yet the members are to sit in judgment on it, both as a jury though hardly an impartial one, to ascertain the commission of the crime, and afterwards as judges to award the punishment of imprisonment. The constitution guaranties a trial in the state or district where the crime is committed; yet, in this case, unless the crime is committed within the district of Columbia, it is possible that the accused party may be tried a thousand, or even two thousand miles from such place.

Further; the constitution provides that no person shall be put in jeopardy of life or limb, more than once for the same offence; now it is true, there is but little danger that a man will be put in jeopardy of life or limb at all, in a trial for any species of contempt whatever; but it is wholly inconsistent with the benignity of the common law, or any law in use in the United States, that an individual should in any case be punished twice for the same act; i. e. for the sake of example, in the case referred to, that he should be liable to be punished for a communication in a newspaper, both as a contempt on the legislature, and as a libel on the same legislature—punished by the legislature for the contempt offered to them, and afterwards punished by a tribunal of justice, on an indictment for a libel on the same legislature. For, it will hardly be supposed, that a plea of former conviction made to the indictment, would be sustained by the commitment for a contempt by the legislature. It would be quite as great an absurdity, if he was punished for a contempt at Washington, and afterwards on a trial for a libel at Boston or New Orleans, should be acquitted of the charge, by giving the truth in evidence. It is true, Mr. Justice Johnson, in delivering his opinion in Anderson v. Dunn, observes, that ‘ the most absolute tyranny could not subsist, where men cannot be entrusted with power because they might abuse it; and much less a government, which has no other basis than the sound morals, moderation and good sense of those who compose it;’ 6 Wheat. 232. But this will hardly hold as a sufficient reason, why congress should be considered as entrusted with implied powers, which are not necessary, from a mere confidence that such powers will not be abused. The true principle seems to be, that the people have entrusted congress with whatever powers they judged expedient, in the constitution of the United States. Congress therefore may exercise all powers expressly bestowed on them by that compact, and all such other powers, as are absolutely necessary to the exercise of those which are expressly bestowed, but no other powers whatever. The power to punish for contempts, in the extended view we have taken of it, is neither expressly given to congress in the constitution, nor is it necessary to the exercise of any powers which are expressly given. The legitimate conclusion then is, that congress can lawfully claim no such power. If it was intended that congress should extend their powers or privileges at discretion, why was it thought necessary to enumerate their powers and define their privileges in the constitution?

With regard to the powers of both houses of congress, as well as the state legislatures, in determining the extent of their own privileges, the remarks of Parsons, Ch. Jus. in the case of Coffin T. Coffin, in relation to the constitution of the state of Massachusetts, may be considered as applicable by analogy. He observes, ‘In this state we have a written constitution, formed by the people, in which they have defined, not only the powers, but the privileges of the house, either by express words or by necessary implication. A struggle for privileges in this state, would be a contest against the people, to wrest from them what they have not chosen to grant. And, it may be added, that the grant of privileges is a restraint on the rights of private citizens, which cannot further be restrained but by some constitutional law.’ He remarks further in that case, ‘if the house of which the defendant is a member, had proceeded against the plaintiff for a contempt in suing this action; whatever had been the result of its proceedings, this court could not have interfered, or granted any relief, until the sentence had been performed.’ It will be recollected, that the plaintiff recovered judgment in this action, and according to the very opinion from which the above sentence is quoted. It is also clear that, in the opinion of this learned judge, if the house of representatives had imprisoned the plaintiff for contempt in bringing his action for redress against one of their members, the supreme court would have had no right to interpose. But it is much to be questioned whether this can be law.

In the case of Queen v. Paty and others, Ld. Raym. 1103. Sal. 503, the defendants were brought into the court of king’s bench on a habeas corpus, having been committed to Newgate by the house of commons, for bringing an action in which they recovered, in contempt of what was alleged to be the privileges of the house of commons. Holt, Chief Justice, held, that the suit was no breach of the privileges of the house of commons, nor could their judgment make it so, nor conclude that court, (king’s bench) from determining the contrary. ‘When the house of commons,’ he observes,’ exceed their legal bounds and authority, their acts are wrongful, and cannot be justified, more than the acts of private men. There is no question but their authority is from the law, and as it is circumscribed, so it may be exceeded. To say, they are judges of their own authority, and nobody else, is to make their privileges to be as they would have them.’ This great judge however was overruled by the other judges. It was held, that the house of commons was a court, and higher than the king’s bench, and were exclusively the judges of their own privileges, &c. &c. But, however the law may be in England, it is believed, that under the constitution of the United States, as well as those of the several states, an act so arbitrary as that supposed by Chief Justice Parsons, would be decided to be illegal and void, by every supreme court in the union, and that either of them would not hesitate to assume jurisdiction and discharge the prisoner on a habeas corpus. Is the house of representatives above the law and the constitution? If they are not, then it is possible that they may commit a man to prison in violation of both. And shall it be endured, that a man shall be kept imprisoned within the United States in violation of law, for want of a tribunal of competent jurisdiction to release him?

It is true, that in ordinary cases, there would be but little danger, that congress would ever make an unwarrantable use of any powers, with which they might be entrusted, for the sake of oppressing an individual, and far less, that they would intentionally usurp power where none was intended to be given, with any such view. For, so long as an individual was not particularly out of favor with the people, the dread of doing an unpopular act would infallibly be sufficient, without any other consideration, to prevent any act of direct injustice or oppression, from being agreed on by a majority of any legislative assembly in a popular government. But what is to become of the rights of an individual who has no such protection? Suppose that he has rendered himself odious to the leaders of the prevailing party by opposition to their schemes. Suppose that he has rendered himself unpopular and hateful to the people, by resisting, what he may consider, their prejudices and erroneous opinions. Suppose that he has said something in disparagement of the great goddess Diana of the Ephesians, that came down from heaven; in any such case, if he may be brought from a distant part of the country for the contempt, to be tried before such a popular legislative body sitting as a court, what security can he have, that he may not fall a victim to political tinkers and coppersmiths?

It is not intended however to deny, that congress has full authority to do any act, which may be necessary to free their deliberations from disturbance or constraint of any kind. This power is absolutely necessary to a faithful discharge of their public duties, as well as the exercise of all powers expressly delegated to them in the constitution. For, it was well supposed, that the utmost freedom of observation, discussion and debate would be fully repaid, by the greater wisdom and prudence of all measures which congress might adopt. The constitution accordingly provides, that ‘for any speech or debate in either house,’ no senator or representative shall ‘be questioned in any other place ;’ the meaning of which obviously is, that he shall not be called to account for what he may have said in congress, either on a civil or criminal prosecution before any tribunal of justice; nor before any other legislative assembly, or public body having political power, as the legislature of any of the states; for, the common law is sufficient to protect him from being called to account by persons, having no lawful political power whatever.

If, however, either of the houses of congress should suffer its members to be threatened for any thing said in debate, or to be waylaid, and assaulted in going or returning, they would compromise their own dignity as well as the respect due to their constituents, in whom the national sovereignty undoubtedly rests in the last resort; and such forbearance on their part should be ascribed to anything, rather than to a want of authority to put a stop to such outrages. The reader will immediately perceive, that allusion is here made to the ferocious assaults, committed at different times during the present session of congress, on two of its members, by armed persons, in pursuance of threats previously given out by them, and the gross personal indignity offered to a third member of congress, by another individual, whose conduct in this instance alone, would suffice to show in what light he must be considered among civilized and respectable people. It must appear singular to reflecting persons, that congress could suppose that so mild a punishment as a gentle reprimand, which, whatever may be the case here, in fact is no punishment at all, except to those who have the feelings of gentlemen, or at least have some remains of character to preserve, would be sufficient to deter men who had made up their minds to gratify their vindictive feelings, at whatever risk of life from their brutal attempts. What is worse, there does not appear to be any sufficient grounds in law, for the proceedings of the house of representatives in this respect; for, the sentence of reprimand appears to be no less illegal, than the result shows, that it was ineffectual, when considered as a warning to others. One would naturally have supposed, that the proper course to be taken in any such case, until congress shall see fit to make provision in relation to the subject by law, would be, in the first place, as soon as complaint is made, to take the person accused into custody, and after hearing what he had to say, if he did not exculpate himself, to keep him imprisoned during the rest of the session, not, as a punishment to him; but, as a measure necessary to secure themselves from further annoyance by him. This would not at all interfere with a prosecution before the tribunals of justice, on an indictment for a breach of the peace, nor with any process against him, for the purpose of binding him over to his good behavior; in either of which cases, the house of representatives might, at their discretion, release the offender from their custody.

Continued inPART II; CHAPTER IV: Of the Law of Libel in relation to Public Officers, &c.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

 

RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press

LibertySpeechThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

PART II; OF SOME PARTICULAR RIGHTS

CHAPTER II; Of the Liberty of Speech and of the Press.

“We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” ~ John Adams

1st-amendIt is a prevailing error among persons, who have not ‘been properly educated, that the less restraint there is in the laws and constitution of a state, the greater is the share of civil liberty which the citizens enjoy. The reverse is much nearer the truth. The restraint of the violent, licentious and unjust, constitutes the only safe foundation for the liberty of the just, peaceable and well disposed. It is the sole object of civil government to protect the latter against the injustice and violence of the former. When an outcry is made for a greater degree of liberty, than is already enjoyed, an inquiry should always be made, what sort of persons they are who make the outcry, and what is the nature of the liberty for which they ask? Is it a freedom to practice wrong upon others with impunity, which they claim, or is it security from having it practiced upon themselves? The former is as shameless and reprehensible, as the latter is reasonable and proper.

There is no government so bad among civilized nations, as to acknowledge as a principle, the right to compel the performance of wicked actions, or to hinder the performance of any actions, which are indispensable to the discharge of any duties of perfect or even of imperfect obligation. There is but little ground to apprehend an infringement of liberty in either of these respects. But, it is in relation to those actions, which, in a moral point of view, are indifferent, that a nation should be considered as enjoying a greater or less degree of civil liberty. Under tyrannical governments, indeed, it is common to say that one is more free than another, because of the greater or less liability to the violation of personal rights in one than in another; but, in fact, where either life or property may be taken from a citizen without law or trial, there is no liberty at all. A law, made to prevent the citizens from doing things, which if there were no such law, they might do without impropriety, is a restraint upon those only who would do them, if there were no such law. If therefore the tendency of any such act, is found to be injurious to the welfare of the community, it may be prohibited out of regard to the public good, and this ought not to be considered as any infringement of the liberty of the citizens. For, as soon as the law is passed, the citizens have notice, that such acts are inconsistent with the public welfare. This notice alone would be sufficient to prevent a good citizen from doing them, if there were no law against it. The law therefore is passed for those citizens, who can be restrained in no other way, and though it is a restraint upon the bad, constitutes the only security of the good.

Where actions, which in a moral point of view are indifferent, and do not at all interfere with or interrupt the welfare or prosperity of society, are prohibited, it constitutes an infringement of liberty; and, if such prohibitions result from the caprice of the rulers, or, are imposed by them to subserve some selfish interests, it constitutes a direct invasion of civil liberty, and a nation is deprived of its freedom in proportion to the number of such unnecessary restraints. But prohibitions and restraints, however numerous, so long as they contribute to -the happiness and prosperity of society, are no infringement of civil liberty. How excessive therefore is the simplicity of those peaceable and well disposed citizens, who join in the clamor, which factious and unprincipled men make for the repeal of laws, which impose salutary restraints! For, what is the true motive of the outcry, which such turbulent individuals raise on such occasions? Is it patriotism, and a regard for the liberties of the citizens, as they pretend? Or, is it because they are not unwilling to sacrifice the welfare of society to advance their own private interests, and wish to annul all laws, which prevent them? But, is it wisdom in the sheep, to desire the wolves to be let loose among them?

In applying these remarks to the subject of the present chapter, it may be observed, that every man has a natural right to express his honest sentiments on every subject that arises. But, he has no right to misrepresent facts; neither has he a right to tell even the truth with any malicious or ill intention. The limits of this right in a state of nature, are therefore very apparent, and consist in benevolence as to intention, truth as to statements, and sincerity as to sentiments and professions. In civilized society, the right of freedom of speech, is further restrained by such regulations, as political expediency may have imposed with a view to the public welfare. But, as the laws of society impose restraints upon the natural right of freedom of speech, in certain cases from motives of policy, so, on the other hand, in certain cases, it suffers simple falsehood however naturally wrong, to escape with impunity. The first is punished, because a violation of express law; the latter is passed over unnoticed by the law, in cases, where it is presumed, no ill consequences ensue.

To be more particular; no language however false or malicious is considered in law, as a sufficient justification for personal aggression. So, also, no redress, can be had by applying to any tribunal of justice, for any language of mere insult or contumely, however false and malicious, unless it charges a man with having committed some crime; or, impeaches his character, skill, capacity or integrity in his trade, profession or occupation ; unless some instances of particular damage sustained in consequence, can be established by evidence; or, unless it charges him with some disgusting distemper, that renders him unacceptable among decent people.

But, by the law of nature, where a man has suffered injuries of the kind just referred to, whether they are such as he might obtain redress for, by the laws of civilized society or not, it would be difficult to show that he had not a right to use the same means to obtain reparation, which he has in case of other injuries offered to his person. Those injuries, for which no action can be maintained before the tribunals of justice established in an organized community, are supposed by the law to be too inconsiderable to be a subject of legal animadversion; and as the exercise of the right of obtaining reparation personally, would lead to continual breaches of the peace, the policy of society forbids recourse to any such measures. In this way it happens, that no redress whatever can be had for words of mere contumely or insult. Yet, unfortunately, it seems that those very injuries, which consist in opprobrious language, considered by the law of too little consequence to maintain an action, are among the most frequent causes of bloodshed by duels. For, men, who are not under the influence of Christianity, if they find that they cannot obtain protection or reparation under the laws of society, which it was organized to furnish, are very apt to consider the law of nature as still so far subsisting; and therefore adopt the same measures to obtain redress for such wrongs, as if no society had ever been organized. This view of the subject points out at once, both the cause and the remedy of dueling. For, legislation against dueling will always remain unavailing, until either some adequate means of obtaining redress, for such injuries as commonly lead to duels, are provided by law; or, such heavy penalties are imposed, as will prevent such injuries from being offered. Such measures, it is true, would considerably abridge the freedom of speech among a certain class in society, but, it cannot be doubted, that an advantage would arise to the public in general, from such a restraint upon the licentious and ill bred.

Free_PressIn the first amendment to the constitution, congress is prohibited to pass any law, to abridge the freedom of speech or of the press. It has never been pretended, that congress has any power to enlarge the natural right, which men have of communicating their sentiments to each other, and consequently this amendment was made merely in order to prevent this natural right from being abridged. When, therefore, the limits of this natural right are once clearly ascertained, no law, though made by congress for the express purpose of punishing those, who overstep the limits of this natural right, will be unconstitutional on the mere ground that it abridges the freedom of speech. For, as it is the natural right which congress is forbidden to abridge, if congress merely punishes those acts which have no authority at all in natural right, the constitution will not be violated. This view of the subject is sufficient to show, that congress is not prohibited by this amendment to the constitution, to enact any laws which they may think proper, to punish libels upon those who are engaged in the administration of the general government. For, no man has any natural right to slander another, by inventing, circulating and publishing malicious falsehoods in relation to his character. Consequently, no natural right is infringed by a law enacted to punish such injuries.

In republican governments, however, as the election of the rulers is made by the people, it is necessary, in order to put it in their power to make a judicious selection, that they should have great freedom, both in discussing the tendency of all public measures of the administration, as well as the conduct of all public officers. They ought also to be permitted to express their conjectures or suspicions as to the motives by which those officers are actuated. They ought also to be allowed to communicate to each other, with the utmost freedom, what they know or have heard, as to the principles, religious, moral or political, of any candidate for any public office, who consents to stand, as likewise, as to his general private character or conduct. This freedom seems necessary to enable the people to give their votes with proper intelligence and discrimination. Because, a bad moral character is decisive proof, that a man is not properly actuated by religious principles, however he may profess them, and no man whose conduct is not thus actuated, is a safe depositary of any office of trust, public or private.

But, no man has a right, either legal or moral, to traduce the character of any candidate for public office, upon mere surmise. If therefore he undertakes to state any facts or circumstances, which are injurious to the character of a candidate for office, it ought not to be considered any abridgment of the freedom of speech, or of the press, that he should be held answerable for damages in a civil action, unless he can prove the truth of his statements; and, if such false statements are circulated through the medium of the press, there is no hardship upon the wrongdoer, in holding him answerable criminally, on an indictment for a libel.

With regard to the constitution of the United States, as well as the constitutions of the respective states, as also, the general and state administrations, it is essential to the liberty and welfare of the citizens, that great freedom of observation and discussion should be permitted. Because, if there is any thing defective in the Federal Constitution, or, in any of the state constitutions, the people ought to have an opportunity of having it pointed out, in order to avail themselves of the power of amendment, which is reserved to them. So, if any measures of the general administration, should be thought to be inexpedient, unjust or dishonorable, the citizens ought to have a right to express their opinions to each other, in order that those rulers or other officers, who may have forfeited the confidence of the people and betrayed their own trust, may be removed from office. The same reasons apply to the state administrations. Great latitude of remark should be permitted here, because freedom of remark and discussion on these topics, tend to enlighten the people and enable them to remedy any particular evils which may be found either in the frame of government, or in the laws, or in the administration of public affairs in general.

But it would be a gross abuse of this right, which it would be no violation of the constitution to restrain by law, to make a pretext of it, in order to bring the whole frame of government into contempt with the people, with the detestable object of inducing them to throw off all government, and thus introduce a state of anarchy and confusion.

Most of the preceding remarks are applicable to the freedom of the press, as well as to the freedom of speech; and the salutary and reasonable restraint of both, by enacting laws for the punishment of slander, or libels, whether against individuals, or against decency and good manners, furnishes no juster cause of complaint, than all offenders have ; who may complain with the same propriety against laws made to punish theft, robbery and murder, as being made in restraint of freedom of action.

But, in relation to the freedom of the press, it may be observed, that the press is said to be free, when it is not required by any law that writings, intended for publication, should be subjected to the inspection of commissioners, appointed for the purpose of examining literary works, and determining whether the publication of them will or will not have a bad effect upon the cause of religion or morality, and licensing or forbidding their publication accordingly. By our law no man can be restrained from publishing whatever he pleases, because he is not under any obligation to submit his works to the examination of any person or persons, previous to publication, and, until publication, no one can know what the work contains. But, the author and publisher are both held answerable, civilly, for damages done to individuals, and criminally for the public offence if any is committed by such publication, in whatever it may consist, whether in its tendency to lead to a breach of the public peace, or to corrupt the public morals. The constitution also forbids congress to lay any such restraint on the press, as should require authors to submit their writings to the inspection of any one before publication; so that, whatever expediency may dictate in relation to the subject, congress cannot impose any such restraint upon the freedom of the press without violating the constitution. Whatever the truth may be as to the soundness of this policy, it is the more popular doctrine, that it is a less evil to give every individual an opportunity of publishing his lucubrations, however offensive they possibly may be to decency and good morals, and even though they should be filled with blasphemy and licentiousness, than to require him, before publication, to submit them to the inspection of any individuals, though selected by the people for their wisdom, knowledge and virtues. But, it must be acknowledged, that some compositions have a most detestable tendency, and, that when once published, it is absolutely impossible to suppress them. In ordinary cases, it is most surely gross folly to lose an opportunity of preventing an evil, which, as soon as it exists, becomes incurable and remediless. But it will be objected, that in this case it cannot be done without infringing the liberty of the citizens. This is one of the pretenses, which are always made use of, to keep good men in bondage or else in continual strife with the perverseness of the dissolute, as if there were any hardship in restraining bad men from doing what good men esteem it a crime to commit. It is not to be doubted, that much of the difficulty of obtaining the consent of the people to subject the press to salutary regulations, arises from the repugnance of authors to submit their works to an examination to decide upon their merits; because such an inspection of their works seems to imply some superiority in the inspectors. But, if the examination is confined to the simple inquiries, whether the composition has any article in it, tending to sap the foundation of religion or morality, or to disturb the general tranquility and welfare of society, no one will have any reason to complain but the advocates of Atheism, Anarchy, and universal licentiousness. It may readily be shown, however, that any such restraint, after the character of a work is once ascertained, would not be contrary to the true spirit of the constitution; because the constitution intended only to prevent congress from restraining the natural right of the citizens, to impart their sentiments freely to each other. But this right does not extend so far as to protect attempts to corrupt society and overthrow its institutions, by setting open a gate, through which blasphemy, impiety, indecency, irreligion, and bad principles may enter, and, having once taken possession, introduce their followers and attendants, vice, immorality and every species of corrupt practice. It is true, the admirers of such writers as Paine, Byron and Moore, if the most exceptionable writings, or passages in the works of each, had been suppressed or expunged, would have had reason to complain, that the principal beauties of those authors, according to their opinions, were strangled in their birth, yet, it is believed, that most persons of consideration and reflection are of opinion, that the preservation of the principles and morals of the young and inexperienced, is a more than sufficient counterbalance for the loss of all the brilliant or spicy passages in the writings of either of those authors, even though accompanied with the total suppression of the rest. But, as long as those who profess to aim only at the public good, are unwilling to submit to any such tribunal, though their works would not be affected by its decrees, it will be vain to expect such as have no way of effecting their base or selfish purposes, but by the perversion of the liberty of the press, to agree to such a restraint of this liberty, as would put an end to their schemes and defeat their intentions.

But, in a political point of view, in which it is probable the subject was principally considered by those, who framed the first amendment to the constitution, nothing could be more odious to a free people, than to have the press subjected to the control of the government, or to the administration for the time being. For, in this way, the liberty of the people would cease to be any thing more than a theme for public declamation, without any existence in reality. Because, the censors, being under bondage to those who appointed them, would permit nothing to be published, however true, that might reflect disgrace upon the administration; and, consequently the most odious and impolitic measures, the most tyrannical acts, and the most gross public injuries would alike escape without redress or even animadversion. Party bias and corruption, it is true, are found to take the place of restraint, in some measure, in producing similar effects, since if credit is to be given to what the editors of public journals say of each other, there is no public measure, however just and expedient, of any administration, which will not be decried and imputed to degrading motives by its opponents; while on the other hand, there is no act, however immoral, however degrading to the national character, however unjust in itself, which will not be either applauded, justified or extenuated, by the editors of administration papers for the time being, according to the supposed various degrees of credulity in political partisans; and generally there seems to be hardly any absurdity, however incredible and monstrous, which some editors will not be shameless enough to force into the mental repositories of their readers, and which, however difficult of deglutition, certain readers will not be willing to receive, as the richest intellectual food. It may be urged, indeed, that if delusion and error arise from these sources, it can happen to such only as prefer darkness and prejudice, to light and just perception; because, on the supposition, that all party papers contain more or less sophistry and misrepresentation of facts, as well as carefully suppress the mention of all circumstances favorable to the views of their opponents, a person who makes it a rule to disbelieve totally whatever one party asserts to the disadvantage of the other, or in praise of its own leaders, unless established by proof, will not be liable to fall into any dangerous error or mistake. This however will be an insufficient protection for those simple persons, who, from whatever motive, confine their reading to the publications of the party whose livery they wear, and consequently are entirely in the power of the editors who furnish them with their daily portion of news and intelligence, and instruct them what ground they are to take in relation to all unexpected occurrences in the political world. For, such simple persons, having neither knowledge nor principles, by which to regulate their own conduct, if any circumstance should be alleged to the disadvantage of their party leaders, would act imprudently, if they ventured to express any public opinion in relation to it, before they had received their direction from the view taken of it in the newspapers of their own party. But, as soon as this view is published, there will no longer be any danger of committing themselves; but, they will know at once whether to deny the fact charged, or, to justify or palliate it, or, to make use of recrimination.

If the freedom of the press consists in the right of publishing to the world our sentiments, on whatever subjects we please, this freedom will be found to be restrained by a variety of circumstances, altogether independent of any provisions of the law.

It has been suggested already, that if a person publishes any thing offensive to good manners, he may be indicted and punished for it as a crime, whether the fact alleged be true or not.

So, a person may be indicted for a libel on the character of an individual, and punished for it as an offence against the public peace. In such cases, the punishments imposed by law, operate as restraints upon the freedom of the press, by making publishers answerable for the consequences, and sometimes even for the tendencies of what they publish. But the restraints alluded to, are of a different nature from these, and operate a priori, to prevent publication directly, and not, to produce that effect merely by punishing such as ought not to be made. These restraints however are confined to newspapers and periodical journals: For instance; suppose an individual is desirous of publishing his sentiments on some subject, whether connected with religion, morals, political economy, or a mere party question; here it is obvious, with whatever justice, truth or ability those sentiments may be expressed and enforced, unless he is willing to go to the expense of publishing a book or pamphlet, it is quite uncertain whether he will be able to lay them before the public. For, if the editors of the journals or newspapers, to whom his composition is offered, should entertain a different view of the subject, and should be apprehensive that the communication would alter the opinions of the subscribers to their journals or newspapers, there can be but little doubt that they would refuse to publish it, though perfectly free from the least tinge of irreligion or immorality. This would be most strikingly true, if the composition offered were of a political nature, but did not coincide with the opinions or prejudices of the editor, or those of his subscribers, or his party in general. And the more eloquent the composition might be, and the more convincing and persuasive his reasonings, if they tended to remove any of the foundations upon which the party was erected, the less probability there would be that the editor would consent to the publication. Because, however great a friend the editor of a party newspaper may be to truth and the interest of his country, or in other words, the general welfare of the whole, it cannot be doubted that he will prefer the interest of what he considers the better part, to wit, his own party.

These reflections are sufficient to make it apparent, that the public journals as at present conducted, are by no means so favorable to the propagation of truth and the diffusion ‘of correct information, where political questions are concerned, as they are sometimes supposed to be. For, though a popular error or prejudice is already tottering on its foundation, as soon as the people are willing to hear it spoken against; yet, if the means of communication are kept from them, each individual must of course correct his own errors and mistakes for himself, and will derive no assistance from the superior ability or illumination of any of his neighbors. It follows, that so far as newspapers are concerned, the press is not free, but each writer or paragraphist must submit his piece for examination and license, not to a learned chancellor, not to a body of men selected for that purpose on account of their wisdom, virtue and integrity, but to the learning, political integrity, and impartiality of the editor of a party newspaper. Such freedom of the press is hardly worth the trouble of protection.

In order that the press should be free from any restraints but those of religion, decency and good manners, by which, it is hoped it will always be controlled, the management of a newspaper should be considered as a public employment, and the editor should consequently hold himself out to his fellow citizens, as pledged to no party or faction whatever, but, like a common carrier, ready to receive all comers, who were willing to pay a stated reasonable compensation for the insertion of their communications, provided they were free from libelous matter of any kind. If the people at large were to make it an inflexible rule, to patronize by their subscriptions those newspapers only which should be conducted on this principle, it is believed it would be attended with the happiest political effects. For,

1. It would be impossible to corrupt any editors of newspapers with the prospect of deriving any advantage from it, without its being exposed at once; since each individual would have an opportunity of inserting his communication, in its turn, in anjr of the daily newspapers, provided it had not already been published, and, if its publication were refused without the allegation of a sufficient satisfactory reason, the public would immediately perceive the true motive.

2. The demoralizing spectacle of the array of many of the newspapers in the country against each other, in the most indecent and ungentlemanly opposition, accusing each other of falsehood, bribery, corruption, &c. &c. would wholly cease. Each editor would consider himself officially neutral, like a judicial officer, and would hold himself in no manner accountable for the communications of his correspondents, any further than to see that they did not violate the dictates of good manners, and the laws of the land.

3. The editors of newspapers would then enjoy the highest degree of true independence and respectability. For, by the impartial discharge of their duty, it would be as much impossible that they should give offence to any reasonable man, by the insertion of communications which did not agree with his particular opinions, as it would for the owner of a public vehicle to give offence to some of his customers, by carrying others of different political sentiments.

4. They could never be accused of being the mere tools of a faction, when their papers were equally accessible to the communications of all persons, of all parties, or of no party.

5. The leaders of any party or faction would have no motive to attempt to hire or corrupt any press, because it could not remain concealed from the public, but would immediately be detected and hooted at by the abused people; the nature of the communications published, and those which would be rejected, furnishing conclusive internal evidence.

6. No editor of a paper would then ever feel compelled by interested considerations, to wear the livery of any party or faction whatever, and would be under no temptation to act from any other motives than a regard for truth, justice and the welfare of his country.

For further remarks on the Liberty of the Press, and some adjudged cases as to the legal liability of Editors, see Chap. IV. of this part.

Continued inPART II; CHAPTER III: Of the Power of Courts to punish for Contempts.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights
The Importance of Free Speech and The Free Press in America

RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections

ElectionIntegrity1The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

PART II; OF SOME PARTICULAR RIGHTS

CHAPTER I: Of the right of suffrage and of elections.

In governments, where the power is retained in the hands of the people, and is exercised in their name by such delegates as they see fit to appoint from time to time for that purpose, the right to take a part in such appointment or delegation, belongs to every constituent member of the social compact, upon which the government is grounded. This right, in whatever manner it may be exercised, is the right of suffrage. It also comprehends within it, the right which each member has of voting upon all subjects, in relation to which the people see fit to exercise their political power personally, and not through the medium of representatives or delegates.

ElectionIntegrity3The simplest form of a popular government, is that of a pure democracy, where the people meet together in primary assemblies and make such laws and regulations for the conduct of the members of the society, as they see fit. In the formation of any such government, a difficulty would meet them at the outset. For, as soon as any measure was proposed, it would immediately be found that some would be in favor of it, while others would be equally opposed to it. In this case, one party or the other must recede, or the society would be dissolved. Because each individual would think himself justified in saying that he did not intend, by joining the society, to have his feelings or interests made a sacrifice to those of others; that therefore nothing should be done without his concurrence, or he would secede. This, it is obvious, he would have a perfect right to do, until some regulation on this subject had been unanimously agreed upon by all the members. It would soon appear, therefore, since perfect unanimity could seldom be found among them, that the society would gradually melt away by the withdrawing of discontented individuals, unless some substitute for it were agreed upon by the society. They would therefore very naturally adopt the principle of mutual concession, and agree that the will of the greater number should bind the whole society, in the same manner as if they had all been unanimous. Not that this is always to be considered as conclusive proof, that the measure approved of by the majority, is really the most wise and expedient; for, perfect unanimity itself would afford no such proof. But as, according to the democratic theory, all the associates or members of society are equal in wisdom and virtue, as well as in their rights, the probability that a measure is wise and expedient, is in direct proportion to the numbers who vote in favor of it, and vice versa. It is true, only a few out of the whole number, really possess wisdom, but those few are perhaps more likely to be found in the majority of the whole, than in the minority. But, however this may be, experience teaches us, that every man supposes himself to have his share, and whether he have or have not, at all events he has a will, and this he will never yield to the control of another spontaneously, unless he finds it for his interest to do so.

It is very clear, therefore, that though it may be perfectly natural, in the familiar use of the term, that the members of a society should agree, at the first formation of it, that the express will or vote of the greater number, should always have the effect of perpetual unanimity, yet this effect has no other foundation whatever, in natural right. For, it is believed, a case can neither be put nor imagined, where, independently of a previous agreement, that the vote of the majority shall prevail, the greater number have any such right to control the whole society, that the smaller number, or minority, are under a moral obligation to submit to their decision. On the contrary, the right of self preservation, as well in the smaller number as in the larger, must always be paramount, in the absence of express agreement, to any such pretended right in others, whether more or less numerous. Each individual has a right to place his own safety on the exercise of his own judgment alone. , The man at the helm has as much right to steer a ship on Scylla, if he thinks self-preservation demands it, as all the rest of the crew have to compel him, if they can, to turn towards Charybdis. If therefore necessity itself acknowledges no such paramount right in the majority, it is clear that it can have no other just foundation, than that of convention or agreement. selves as well as their country, and so favorable a conjuncture will enable them to command the highest price.

The prevalence of the democratic notion, that the majority have a natural right to decide and govern the whole, has probably prevented an examination of the question, whether a better rule might not be adopted in public assemblies than the usual one, that the vote of a mere majority shall decide in all cases. That there are many inconveniences resulting from the adoption of it, is very clear; and that these inconveniences may not be obviated by a modification or qualification of this rule, is not easily demonstrable.

The inconveniences which result from the adoption of the rule, that a majority, however small, and though consisting of a single individual, more than the number of the minority, shall be sufficient to determine the rejection or adoption of all public measures, however important, are the following, viz.

1. The casual absence of one or two members, may enable the minority to pass laws or adopt other public measures, entirely contrary to the will of the majority.

2. If there is merely the difference of one between the majority and the minority, any single individual has it in his power to control the whole legislative body of which he is a member, and may turn the scale in all cases when the whole number is thus divided, at his caprice or discretion. Here the individual, having the least reputation to preserve, the least regard for principle; and who is most susceptible of corrupt influences, will be most apt to gain the ascendancy. For, men of character and principle will stand firm, out of a regard to duty and consistency. But unprincipled men will sell them

3. But, upon the improbable supposition, that there is not a single unprincipled individual in the legislative assembly, it follows, that the person possessing the most feeble intellect, and who consequently is the most wavering and unsettled, will immediately become of the greatest influence and importance. All the rest may be firm from a settled conviction of the justness of their views of the subject. But, this individual having less knowledge and discernment, will act from motives of ostentation and vain glory.

4. But, if they are all men of sense and integrity, still it is found by experience, that a public measure of any considerable importance, which is adopted by the vote of a small majority, is of doubtful expediency, and seldom attended with a good result. The reason is, not only because the minority is so numerous, that it may be considered an equal question, whether in reality the adoption of the measure is wise or not; but, because the people immediately become divided into factions in relation to the subject. The question, though settled for that time, will be brought up again and again. The public mind is kept in a state of excitement and exasperation in respect to it. Intrigue and corruption are resorted to. The public policy in relation to the great interests of the country, continue uncertain and wavering, because laws are first enacted, then modified, then repealed, then re-enacted with qualifications, &c. &c. The parties prevail alternately, but never without great heat, strife and animosity, and if the question is ever finally settled, it is through the influence of any considerations, rather than those of justice, wisdom or public expediency.

Many of these inconveniences would be avoided by requiring the sanction of a larger proportion, than a mere majority of a quorum. Let a decisive majority consisting of two thirds of a quorum, always be necessary to authorize a change in the existing state of public affairs, by the adoption of new measures, and there would be an end to most of the evils just referred to. For, unless the expediency of a law or other public measure, were very apparent, there would be no probability, that two thirds of the legislature would be in favor of its enactment or adoption; and, if so, the opposition would have but little prospect of success in any attempts, which they might make to procure its repeal. Thus public policy would be less subject to change. For, as it would require the concurrence of two thirds to enact a law, it would also require the concurrence of two thirds to repeal it. This would produce a proper caution in the enactment of laws; for, though a fraction over one third of the quorum, would be sufficient to prevent the enactment of a law, a majority of twice that number would be necessary to procure any modification of it. This rule is wisely adopted in relation to amendments of the constitution, where frequent changes would be absolutely intolerable; and it is believed, great advantages would immediately be perceived, if it were extended to the acts of the federal and state legislatures.

In the election of rulers and other public officers, different considerations will necessarily vary the conclusion. Here, a mere majority of voices ought to be allowed to prevail; because if two thirds were required, it would always be in the power of a numerou s minority to prevent the choice of any other candidate than their own. A plurality of votes, where there are more candidates than two, ought not to be sufficient to constitute a choice; because, in this way, there is a possibility that the individual most odious to a majority of the voters, may prevail in the election.

C-Voter-ID(1)In a republic, or any form of government more complicated than a simple democracy, of which a town meeting for the making of by-laws may be considered a fair example, all the voice or influence, which the people have in the regulation of public affairs, is exercised through the medium of senators, delegates, or representatives, whom they choose to act for them in the various capacities established by their constitution, or frame of government. If they would make the most advantage of their right in this respect, it is obvious that they should take care to select men of integrity, and well qualified to discharge the duties of the offices which they are expected to fill. For, since the people have a right to vote for any candidates whatever, who have the necessary legal qualifications, the advantage of the right of suffrage, depends upon the opportunities, which it affords the citizens, of excluding all who are incapable or unworthy, from stations of responsibility, and placing in them those only whom they esteem most deserving of their respect and confidence. Yet, in practice, it is found, that these two great objects of a democratic form of government, are but partially obtained, owing to the manner in which the people usually exercise their rights in this respect. The reason, why the people so frequently fail of obtaining full success in relation to these objects, will be best exhibited in answers to the two questions, Why are not the best men always chosen? and, Why are not unsuitable men always excluded?

In answer to these questions, it might be thought captious, to remark, that the people are not qualified to determine who are the most suitable candidates for public offices; for, though popular applause, or censure, is no decisive proof either of merit or of the want of it, yet there is usually some foundation for popular opinions. But, supposing the people to possess an unerring judgment of the merits of candidates, they must necessarily be deprived of the benefit of their superior discernment, by a certain course of measures, which frequently is adopted by influential persons, previous to the elections, and by which they attempt to secure the choice of the candidates whom they support.

ElectionIntegrity2Under a government of laws, it is true, that it is a matter of no great consequence, by whom the laws are executed, the sole object of government being to provide that they shall be properly enforced. Among these laws, however, must of course, be included every rule or regulation, adopted for the general defence and protection. Now to the great body of the people, being neither office seekers, nor office holders, and consequently having no other personal interest in the government, than what concerns their own safety, and the regular administration of the laws, it is a matter of no real consequence, whether the government is administered by A. or B., provided only that the public peace, as well as private tranquility, is preserved, and the laws are enacted with wisdom, and executed with prudence. But, in choosing persons for public offices, the people, according to the true theory of a republican form of government, should be guided by the characters of the respective candidates; and should elect those whom they consider to possess the best abilities, and the most industry, fidelity, and integrity. For, in the beau ideal of a republic, there are no parties or factions. Each individual aims at the general good, though not to the total exclusion or neglect of his own private interests. And therefore, though he will not be disinterested enough to sacrifice his private property to the public good; yet, if he is an office seeker or office holder, he will be so true a patriot, as immediately to relinquish his office in favor of some more able aspirant. Patriotism of a higher order than this, will be looked for in vain, in the present generation, any where but in eulogiums, theatrical exhibitions, obituary notices, or anniversary orations; and such as is here described, it is to be feared, will seldom be found, except in Utopia, or the Island of Formosa.

Experience shows, that there are always two or more parties or factions in a community, the well disposed part of each of which, equally seek the best interests of the whole. But, in all such parties or factions, those who make a pretense of the public good to bring about their own private views and selfish purposes, are far more zealous and forward, than those who aim only at the general good. By a show of greater zeal, they expect to be regarded as having a more ardent patriotism ; and among superficial observers, the single-hearted, and the inexperienced, they commonly obtain their aim. And though true patriotism, such as existed among noble and disinterested men of former days, who desired no other reward than an approving conscience, and the applause of such as are able to distinguish and justly value true merit, is a stronger motive than the sordid considerations of profit, office, or station; yet this quality is so infrequent, and office seekers so often assume the mask of it, while playing their parts before the public, that some hypochondriacs and misanthropes deny that there is any such thing as political integrity in any of those, who hold themselves up as candidates for public office. Yet it cannot be doubted, that there really exists such a virtue as disinterested patriotism, and that it may be distinguished from hypocrisy and imposture, by men of information and discernment.

Imagine a young man of good education, availing himself of every opportunity to bring himself before the public, by making speeches at conventions or assemblies of the people, and taking a conspicuous stand in relation to any of those subjects which are made use of by turbulent and ambitious men to. keep the public mind in a state of ferment; that, under a pretext of some crying grievance, whether real or imaginary, he proposes to insult or disturb congress, or the state legislature, by insolent and violent resolutions; that, though he may have outgrown the puerile desire of displaying a talent for declamation, which perhaps has gained him an academical prize, yet has not acquired sense enough to be ashamed to take up two or three hours of the time of a public assembly, in rehearsing those superficial views, those crude speculations, which usually occur to young men at a certain age; but which, for the most part, they have too much diffidence to express in public, until the same advance in years which gives them confidence, brings also juster views, and a more correct estimate of their own abilities; suppose him to have acquired sufficient knowledge of mankind to perceive, that in popular assemblies, the good opinion of the wise, being few in number, is of but little consequence, provided only, that the more numerous body, however giddy, rash, and inconsiderate, is prepossessed in his favor; since the vote of any of the latter has the same weight as that of any of the former; suppose him to be in the constant practice of the arts, by which an ill-disposed multitude are usually governed; that he leads them to such measures as suits his purpose, by exciting their animosity against their political opponents, and inspiring in them a confidence of their impunity, whatever they may do; that he boldly affirms among them that every one, who dissents from him is an aristocrat, and an enemy to the peopled rights; that among the ignorant and profligate, he calls the restraints of justice, religion and good order, priestcraft, superstition, and fanaticism; that he holds out to the selfish, necessitous, and sordid, that they will probably gain an office by joining in his measures; and lastly sets at defiance those persons of integrity, who, he is conscious, discern his true character, and asperses their reputations beforehand, both to disable them from exposing his artifices, and to deter others from opposing his schemes, &tc. &.c. &c. Can any one in his senses ascribe these arts to patriotism? Is there any one, however unprincipled, who will be so mere a simpleton as to support his measures without an expectation of the share of the public spoil; or to lend his influence in raising him to public office, without a hope, perhaps an express promise, of some inferior office in return?

But, how may that true patriotism, which is ready to sacrifice interests merely selfish, for the public good, be distinguished from the counterfeit, which, under pretense of seeking the public good, regards its own exclusively, and to them, however inconsiderably concerned, will sacrifice all other considerations,—the tranquility, the honor, and the safety of the country.

True patriotism comes forward when real dangers threaten the country, takes the lead in personal sacrifices, and risks not only ease, but health and safety, to protect it and insure its welfare. The test of it is self denial, or a disregard of personal interests where the general welfare is concerned.

False patriotism is most conspicuous where there is no real danger. The false patriot magnifies every public grievance, in order that his assistance may be called for to furnish a remedy. In this way he expects to gain power and distinction by instilling a belief that a crisis is at hand, where his superior abilities may be required. Some of the characteristic traits of false patriotism are, speeches and harangues, never ending but to begin again; inflammatory resolutions proposed to the people for adoption; abuse of the privilege of speech and of the freedom of the press, and of the right which the people have to assemble, by convoking them without any necessity or useful occasion. Further; the false patriot makes magnificent pretenses of doing, what the true patriot does without any pretense at all; and it is not unusual to find that the false pretenses of the former, obtain a credit with the multitude which the actual performances of the latter do not always receive. The principal aims of the false patriot are office and emolument; when these are obtained it languishes until there is a danger of a change in the administration, when it revives and proclaims the danger to which the country is exposed.

There is a third class of persons, who make no pretensions to patriotism true or false, but who think it a comfortable way of living to secure a public office, the duties of which are easy, and will afford them greater profit than the same quantity of labor in an independent calling, and at the same lime exempt them from that anxiety, which usually harasses all whose living depends on their own exertions. It is a characteristic of many of this class, that they may easily be brought over to join any party, which, there is a probability, will gain the ascendancy in political affairs, by any reasonable prospect of personal benefit. Such persons seem to be formed by nature, like parasitical plants, to depend and hang upon others, whom they flatter, and by whose course their own conduct is wholly guided. They are the flatterers of men of influence so long as they retain it; but when that influence appears to be on the decline, it is their apparently sincere change of opinion, which frequently gives the greater weight to the opposite scale of the political balance. It is one of the miseries attending popular governments where the people are divided into two parties or factions, that the preponderance of one or the other, should so often depend upon this third class.

That government alone can with propriety be styled free, where the political powers bestowed by it on their rulers, are limited to the necessary emergencies of society; i. e. to its safety and good order; and where the people have a right to select whom they please for their rulers, at periods recurring with sufficient frequency to enable them to remove all those public officers, whose duties are not performed in a satisfactory manner, and to elect others in their room. But though the powers of the rulers, as well as their term of office, are limited, and though the laws of the country may be the most mild and indulgent, still, if the people have not the uncontrolled exercise of their power and right of electing their own rulers, they can hardly be considered as living under a free government; since in that case they do not govern themselves, but are governed by that power, which virtually appoints their rulers by controlling their elections. For, if they cannot remove their rulers from office and elect others in their room, then the rulers will not be accountable to them. Thus, if the members of a state legislature were appointed by a foreign power, however just and equal the laws might be, the people would not live under a free government; because the rulers would be responsible, not to the people who had no hand in their appointment, but to the foreign power which placed them in office. Neither in strictness could the people be considered as free, if a foreign power had the right of nominating the rulers, and the people had merely the right to adopt or reject such nomination; since they must be very much at the mercy of the nominating power. Nor does it make any material difference, whether the nomination is made by a superior foreign power, or, by a domestic superior power; or, is exercised by a species of political legerdemain, by persons in whom no such superiority is acknowledged, in a manner so subtle as to escape observation, though practiced in the presence and before the eyes of the people. For, if the people are deprived of the free exercise of their right of suffrage, the effect is still the same, whether it is done by force or by fraud, by superior power, or by mere juggle. Because, at best, they merely elect those who are nominated for them by others; in which case they are no more free than those, who live under rulers whom others appoint without the ceremony of an election, which in any such case is as humiliating and mortifying, as it is unnecessary and tantalizing. An imaginary case may serve for illustration. Let it be supposed, that in a district where the people are divided into two parties, it has become necessary to elect a public officer ; that a preliminary meeting is thought necessary by the major party in order to select a candidate ; that in this party there is an individual of great political influence, who has usually acted as a leader, who is desirous that some friend or kinsman should be elected to the office; that this individual is a man of fair character, and has an average stock of abilities and acquirements. Under such circumstances, if this influential person has intimated his wishes on the subject, it is next to impossible that they should not be gratified; though there may be twenty individuals in his own party, who are better qualified for the office in every respect. For, this influential person will be consulted on all subjects of importance previous to the election; and, by means of his satellites and dependents, will know precisely at what time, and on what occasion, to bring forward the favored candidate to rehearse a speech before the public. A meeting being then called, agreeably to previous arrangement, and such persons being put upon the nominating committee, as are previously ascertained to be favorable to the candidate’s pretensions, he will of course be nominated by them unanimously, and it is probable the nomination will be received with the apparent approbation of all present. No further step will then be necessary than to insert the doings of the meeting in the next newspaper, with a notice of the nomination, and an account of the promising talents of the candidate, which, however, experiment has shewn, the people think ought not be written by any friend nearer than a brother. His election to office will then follow of course, though each voter of the party to which he belongs, is perfectly satisfied in his own mind, that there are many individuals in every respect Ijetter qualified for the office. They will not oppose the election of this candidate, however, because in every stage of the process, from the first preliminary meeting to the day of election, they feel that they shall be in a minority, if they make nny such attempt; besides, if they vote for any other candidate than the one, nominated for them by the leaders of the parlies to which they belong, they will break up the party, and then their opponents will gain the election; or, at any rate, their votes for persons whom they believe to be better qualified, will be merely thrown away.

To persons, therefore, who belong to parties, there is no other freedom of election, than, either to vote for a candidate nominated for them by the influential men of the party, or, to vote for a candidate nominated by the opposite party, or, to cast their vote for third persons, or, not to vote at all.

To vote for persons nominated by the influential men of a party, in most cases, differs but little from giving those influential persons the power of appointment. The other alternatives need no comment. What then is to be done? The embarrassment lies here, that the people suffer certain influential persons to nominate candidates for them, without being perhaps conscious of it at the time, and suppose that those candidates are the choice of a majority of the party, when it may be, that, with the exception of the leaden of the party, and a few retainers, every individual in the party may prefer other candidates. How does this happen? It happens because the people are deprived ol their power of nomination, and suffer the nomination of the influential men, made through the medium of a nominating committee, to go forth to the public as the voice of the majority of the party, his undoubtedly to considerations of this kind, in part, that the right of suffrage, as at present exercised, has become of little value or estimation among discerning men, who have no desire to lead others, and disdain to be led by them. This is apparent from the little interest, which seems to be taken in elections, demonstrated by the small number of votes given in, when compared with the whole number of qualified voters.

The single remedy for this evil, and which would immediately restore the right of suffrage to its proper value and estimation, is for every voter to throw off the badges of party, which are nothing more than the livery, by which the leaders of parties distinguish their followers from all others. They should also have the virtue and independence, to vote according to the dictates of their consciences, and with a view to the general interest, which is invariably sacrificed by a party to its. own interest, whenever they come into competition. For,- there is no one so simple as to imagine, that a party will not prefer the election of an individual pledged to support them, however incapable and however worthless, to the ablest and most honest man that can be found, who will give no such pledge. What is this but a sacrifice of the general good of the whole in order to further the interests of a part, or rather the private views of the leaders of a faction?

Let the people then throw off the trammels of party, and take care to secure to themselves the exercise of the right of nominating the candidates for public offices. To intrust it to a nominating committee, though apparently chosen by the people is in fact to throw it away ; for, if the committee are to nominate the candidates to be voted for by the people, why not permit them to appoint the rulers at once, and thus save the formality and trouble of an election, when they amount to the same thing in substance?

This evil might be obviated in practice, if the people at a preliminary meeting, held at a convenient time before the days of election, would adopt some such course as the following :— 1. Let them choose a moderator. 2. Let them choose a committee to assort and count votes for that meeting. 3. Let them bring in their votes in writing for candidates for nomination, which being sorted and counted, the most popular candidates would presently appear. 4. If any candidate had more than one half of all the votes, it would be unnecessary to proceed further. But, if there were many candidates, and neither of them had a majority of the whole, let a second ballot take place, to decide between the two candidates having the highest number at the preceding ballot, and casting out all votes given in for any others. The candidate having the highest number at the second balloting, would thus be the candidate nominated by the people or by the party, according to circumstances, and each individual would act without being controlled by the indirect dictation of others. After the vote was declared, those speakers who thought themselves qualified to instruct the people, might profitably employ the rest of the time in useful discourses; but it would be a very useful regulation to consider all rhetorical declamation as out of order, until the regular business of the evening had been transacted; so that no one might feel obliged to remain to hear it.

This course of proceeding would generally be distasteful to the leaders of the party, because their control over the proceedings of the people would be very much lessened, and their influence would be reduced to just what it ought to be, that is, the influence of superior talents, information and integrity, so far as they possessed these qualities. But the influence of intrigue and secret corruption would be almost wholly abolished.

In answer to the second question, why are not unsuitable persons always excluded from office? It may be answered, in relation to those offices, which are filled by popular elections, that the people seldom, if ever, elect a man to an office for which they know him to be unfit: if therefore such an individual is chosen by the people, it must be the result of mistake or misinformation. Party prejudice, it is true, often turns the scale against superior merit, but the people will not, with their eyes open, disgrace themselves by choosing persons known to be dishonest or incapable. The bad policy of such a choice is apparent; because it would take away from the citizens one of the inducements to correct conduct, t. e. the prospect of rising in the public estimation by a uniform course of good behavior, by showing, that the people attach no importance to the good or bad character of the candidates. But in fact, it is for the interest of the people, that all public officers should not only be capable of properly discharging their duties; but should be men of such integrity, that no inducements which can be offered, will be able to induce them, to betray the public confidence. For this purpose, it is absolutely necessary, that the officer’s integrity should be grounded on religious principle, not religious profession merely, for this is a mere counterfeit; nor upon honor, or pride, or reputation, or sense of character; for, all of these last have been found to fail, when exposed to the ordeal of supposed secrecy, impunity, the hope of office, &c. &.c., or, to personal danger or loss of office, &c. &c.

On the other hand, when unsuitable persons are appointed to offices by men in power, it may arise from a great variety of causes. It may be the result of erroneous impressions, made by recommendations given without proper caution or inquiry. It may also be, by way of grateful acknowledgment to the person so appointed, for services, of whatever nature, previously rendered by him to the person appointing. Where the tenure of the office depends upon the pleasure of the person making the appointment, and a man of unsuitable character is appointed, with a knowledge of his character, it may also be, because a person without reputation or principle, is much more obsequious to the commands of his superior, who can remove him at pleasure, and thus deprive him of his temporary standing with the people, and perhaps of his means of support, than a man of religious principles and respectable character, of whom any dishonorable compliance would be vainly required; because, if he were removed, he would be sustained by conscious rectitude, as well as the certainty that his character would support him, whether in or out of office.

This last suggestion, it is believed, furnishes the true reason, why men, well known to be incapable of a proper discharge of duty, are sometimes appointed to office. It is because services are expected of them, of a very different nature from their regular official duties, which they can, and perhaps they alone are known to be willing to perform. . The insufficient discharge of their official duties is therefore winked at.

Notwithstanding the popular theory of a democracy or a republican form of government, therefore, it is quite apparent, that, under the right of electing whom they please for their public rulers, according to the common practice, there is -no insurmountable obstacle to prevent men of bad principles and had character, and very limited talents and acquirements from attaining to the highest public stations. It is equally clear, that the people are deprived of the services of every man of experience and integrity, whose principles will not permit him to unite with any of the parties or factions which, under pretense of zeal for the public good, are constantly disturbing the peace of society, by their contests for power, office and emolument. For, the objects of a party or faction, from its nature must be merely selfish. The first class of leaders seek the highest offices for themselves. The second class, or parasites, endeavor to procure the election of the first, in order that they, the parasites, may be appointed by them, to such offices as the laws place under their control. The rest of the party are merely retainers or followers. The public then lose the services of all honest men, who refuse to join any party. Because no party or faction, will ever elect to office any individual, whose refusal to act under them, is an indirect reflection upon their political conduct.

If, however, the people have the independence and good sense, to secure to themselves the exercise of the right of nominating candidates, in the manner already suggested, no persons, whatever their wealth, standing or office, will be able to exert any improper influence over the voters; the office of parasite will cease, becoming equally ineffectual and contemptible, and the people will become, in fact, what perhaps they now suppose themselves to be, the real constituents of public officers.

But unfortunately for the good of society, it too often happens, that, while the ignorant, incapable, selfish and dishonest unite in the support of a candidate possessing a similar character, from the influence of sympathy, as well as from the envy which they feel towards men of principle and integrity—the honest and well meaning voters, from a belief, that superior merit will undoubtedly receive the preference at popular elections, do not feel the necessity of exerting themselves at all on such occasions. The consequence is, that the less deserving candidate frequently prevails; because in proportion to his want of merit, the more gross, shameless and unprincipled are the measures, which are resorted to, to secure his election.

In connexion with the present subject, it may not be amiss to make a few remarks in relation to the right, which is frequently claimed by the voters of districts, to give particular instructions to their representatives in the legislature.

It can hardly escape the observation of any reflecting person, that there are certain hackneyed propositions, which are continually made use of by public speakers and writers, by whom they are assumed as incontrovertible principles or axioms, behind which it is unnecessary to look, and yet which, on examination, are found to be wholly groundless and futile. These erroneous opinions are continued by the obsequious court which persons, who know better, frequently pay to popular prejudices, for the sake of ingratiating themselves with the people, or, from an apprehension of being denounced by demagogues, if they should attempt to set up any doctrine at variance with such opinions.

One of these is the pretended natural right, which, it is said, the majority in any society have to control the minority, which, when analyzed, is found to be grounded on consent, agreement or arrangement, or otherwise has no better foundation, than the mere brutal right of the strongest. Another of these pretended rights, is that, which the voters in particular districts claim, of giving instructions to their respective representatives in the legislature, which has no rational foundation at all. This is easily demonstrable from the following considerations.

A representative, from whatever part of a state he may be chosen, is the representative of the state, and not the agent of the town or district from which he comes, though as a convenient mode of designating him, he is frequently called the representative from such or such a town or district. It follows, of course, that such town or district has no greater right to instruct him, than any other part of the state. For, the mode of election by districts, is merely a mode of apportioning the representation.

It is not made the duty of a representative to obey any such instructions. It is true, he has a right to consult whom he pleases, and, for the same reason, any one may advise him, who thinks fit. But, as he is chosen on account of his own personal qualities, his talents and experience, it would be absurd to suppose, that he is not at liberty to follow the dictates of his own judgment. On the contrary, the whole community have a right to the exercise of his own understanding, unbiased by the limited and perhaps selfish views of the comparatively small number of his immediate constituents. Further, the exercise of such rights by a majority of such constituents, seems wholly inconsistent with the rights of the minority; because it appears to be the meaning of the social compact, by which the citizens agree to be bound to obey such rulers, as the majority shall choose, that those rulers shall be left to the exercise of their own judgment. For the minority are bound by the compact to obey the rulers, and not to obey the majority; but, if the representatives are bound to obey the instructions of the majority, then the minority become servants to the caprice of the majority.

It is one of the advantages of a legislative assembly, that the members confer together, and, by a comparison of their respective sentiments, and, by an interchange of such intelligence as each possesses, they become better informed, and consequently better able to legislate on all subjects brought before them. But, if a representative is bound to follow the instructions of his immediate constituents, who are but a small body of men in comparison with the whole state, and who have not had the advantage of hearing the subject debated, the public will lose the benefit arising from the discussions of the legislature; indeed, all discussion becomes superfluous, if the representative is bound to act agreeably to the instructions of his constituents.

But, if the representative is bound to follow such instructions, there is an end of all responsibility on his part. He becomes a mere tool or instrument, in whom the possession of knowledge or abilities, is merely a superfluous ornament. All that can be expected of him is, to have sense enough to understand what is required of him, and capacity enough to do it, and the responsibility must rest on those who made him their agent. All this is a violation of common sense.

But, on the supposition, that the representative is bound to obey such instructions of the majority of his constituents, how is this majority to be ascertained? There is no provision in any law, to hold meetings for any such purpose. What sanction or evidence, then, can any self-constituted assembly offer, to induce the representative to receive their resolutions, as the instructions of his constituents? Certainly none, that he is obliged to regard. Such irregular and informal assemblies generally afford conclusive evidence of the intrigue and management of a few influential individuals, and perhaps may be submitted to by an obsequious representative, who may be willing to compromise his personal dignity, rather than incur the risk of losing his office, through the influence which such leaders have over the rest of the constituents, who have less means of information. Such instructions however are always degrading to the representative personally, and consequently must tend to deprive the office both of respect and responsibility. A sure mode of preserving the independence of the representative, would be to lengthen his term of office, and render him ineligible a second time. The fear of losing his office, in that case, would never induce him to submit the exercise of his own judgment to the opinions of the leaders of the party which elected him; and, having no selfish interest to serve, he would be left wholly free from the influence of any other motive, than the conscientious discharge of his official duties according to the best of his ability.

Continued inPART II; CHAPTER II. Of the Liberty of Speech and of the Press.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses

RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States

Bill of RightsOf the rights reserved to the people of the United States; not being granted either to the general government, or to the state governments.

From: The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

CHAPTER VI: Of the rights reserved to the people of the United States; not being granted either to the general government, or to the state governments.

In the formation of the federal constitution, it was judged best, on the whole, though there was considerable difference of opinion in relation to the subject, not to introduce into it any bill of rights. The reason for excluding it, was principally, because, it was thought, that if no bill of rights was inserted, all rights and liberties not relinquished to the general government, in the constitution, either in express terms, or by necessary implication, would be considered as retained by the people; while, on the other hand, if a bill of rights were introduced in the constitution, and any right or liberty chanced to be omitted in the enumeration, such right or liberty so omitted, would be considered as relinquished to the general government, by implication. Some of the members of the state conventions, however, and particularly of the Virginia convention, where this subject was thoroughly discussed, were strongly in favor of a bill of rights, and some of the amendments, which were afterwards made to the constitution in consequence of the strenuous efforts of those members, contain in express terms a reservation to the people, of certain rights and liberties, which it would be difficult to show congress had any right to interfere with, independently of such reservation. These rights, however, were very properly reserved to the people in express terms, for the purpose of avoiding, as much as practicable, all doubts in relation to the subject. For the same reason, two clauses were inserted among these amendments, declaring in substance, that powers not delegated by the constitution are retained; and, that a partial enumeration of rights should not be construed to deny or disparage rights not contained in it. In a state of nature, the rights of an individual might be summed up in a single expression, viz, that he had a right to do whatever he had a power given him by nature to do, provided he violated no precept of religion, and was guilty of no wrong to others. But, in the innumerable relations of organized society, though all a man’s rights may be summed up in a manner almost as brief, viz, that he is restrained by no law or duty from doing anything which does not violate any rule of religion or morality, and which does not infringe any of the positive laws or institutions of society; yet, it will be best in order to furnish a more distinct and clear idea of these rights, to take a review of the more important of them separately. For this purpose, since no particular order is observed in the constitution, none needs be observed here.

1. Religious Freedom. Under the first amendment of the constitution, congress is prohibited from ‘making any law respecting an establishment of religion, or prohibiting the free exercise thereof.’ The reason of this prohibition may be traced in part, to the general spirit of toleration, which prevails throughout the United States. It is not a necessary conclusion however, that all the various sects are thus tolerant; but, as the population is divided into a great number of different sects, no single one of which constitutes a majority of the whole, it would be vain for any particular sect, to encourage thoughts of being established as the religion of the whole union. As therefore, there is no probability that any particular sect will ever be able to gain an ascendancy in this country by means of political power; and as unprofitable contests for that object, would create rancorous disputes among those sects, and tend to bring the general cause of Christianity into disesteem with the feeble minded, and give an occasion to the adversary, it has been thought best to provide for a general toleration of religion. The power to make regulations in regard to religion, therefore, must remain in the people of the United States; and though at first sight it might seem, that the citizens of each state might authorize their state rulers to impose religious restraints, yet, as this would interfere with Art. IV, Sect. 2, of the Federal Constitution, it seems that it cannot constitutionally be done.

2. Freedom of speech and of the press. By the same amendment congress is prohibited from passing any law. abridging the freedom of speech or of the press. These two rights are not further noticed here, being made the subject of chapter II, in part II.

3. The right of the citizens to bear arms. The second amendment to the constitution, declares, that ‘the right of the people to keep and bear arms, shall not be infringed.’ The reason assigned in the amendment for this restriction on the power of congress, is sufficient to show its true construction. This reason is, ‘because a well regulated militia is necessary to the security of a free state.’ Certainly, it is impossible to provide any other mode of defence which shall be at the same time so safe so cheap, and so effectual as that of a well organized militia. For, every able bodied man, with the exception of those who are exempted because they are engaged in the discharge of other public duties, is bound to assist in the public defence; and consequently, with the exception of the small number referred to, the number of the whole militia of the United States, is limited only by that of its effective citizens.

The chief excellence of the militia system, is that every citizen at a moment’s warning becomes a soldier; and when the exigency is over, at a moment’s warning retires again to the calm and usual pursuits and occupations of peace. To repel a sudden invasion of a foreign enemy; to put down a domestic insurrection at its first commencement; to protect the country from any attempt to usurp power by persons not confided with it, are occasions, in which the policy of the militia system is very apparent. Another advantage, which however is not quite so obvious, is the assistance which it is always ready to lend the civil arm of the government; in preserving domestic peace and tranquility; in the execution of the process of the law; and in suppressing the tumults and riots and other disorders of the less informed citizens, when under the influence of their own unruly passions, whether excited by some unfortunate occasion, or exasperated by the false reasonings or representations of designing and unprincipled leaders or declaimers. The influence of the militia system in these last cases, is less perceived by the orderly citizens, because it is so much felt by those whose irregularity of conduct can only be restrained by the consciousness of a superior controlling power, which they cannot withstand, and therefore will not attempt to provoke.

Their inefficiency in the field against a regular army, arises from, and is consequently in direct proportion with the following circumstances; viz; want of military skill and experience, in the officers; want of respect for their superiors, and of a spirit of subordination, in the private soldiers. The officers are unable to teach; the privates will not learn. The officers neither know how to command, nor how to enforce obedience. The privates will neither submit nor obey. The whole results in a total disregard of discipline, a want of confidence in their officers, and a distrust of themselves and of each other. These defects however may be remedied by drilling and exercising under officers, who have had an opportunity of seeing service. .

There is but little danger that the militia will betray their country. There may be traitors among them; but having their own interests to protect, and being in reality the country itself, it would be absurd to suppose that they would ever betray themselves. It is true, that they may ruin themselves by acting under erroneous views of their own interests. But this is incident to human nature.

4. The quartering of soldiers. It is provided in the third amendment of the constitution, that ‘no soldier shall in time of peace be quartered in any house, without the consent of the owner; nor, in time of war but in a manner to be prescribed by law.’ This provision is important to the comfort of the citizens. When soldiers are quartered on the inhabitants of a place without their consent, it gives rise to many abuses and impositions on the part of the soldiers, and a great deal of ill will on the part of the citizens. To live at free quarters, is little else than making booty and pillage of every thing, at discretion. In a state of war, the exigencies of military service may frequently require that soldiers may be quartered on the inhabitants. To leave the regulation of this matter to the discretion of the commander in chief of an army, would be to subject the persons and property of the citizens to the risk of outrage, insult and violence, without any other means of redress than such as depend on his arbitrary will. The citizens have prudently guarded themselves as far as practicable, by requiring that this subject shall be regulated by law.

5. Under the 4th amendment, the persons, houses, papers and effects of the people are secured from unreasonable arrests, seizures and searches. No warrants therefore shall issue but upon probable cause supported by oath, etc. By these provisions all general warrants, for searching or seizing persons, property, or papers, without particularly describing the object of such process, are made unconstitutional. The propriety of securing the liberties of the citizens in these respects, is manifest from the arbitrary and tyrannical use of general warrants which has frequently been resorted to in Great Britain.

6. The 5th amendment declares, that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury, &c. etc. One of the principal objects of this provision, was to exempt persons who belong neither to the army or navy of the United States from trials by a court martial, or other tribunals not known to the common law, which might be erected by the legislature. It furnishes an important barrier or safeguard, on the part of the people, against any acts of violence, imposition or oppression which may be practiced upon them in war or peace, by military commanders, either by direct outrage, or by subjecting them to summary trials and convictions before officers under their command, and consequently more or less under their influence, by the most odious and least to be depended upon of all trials, that by court martial. This however will prove inadequate to protect individuals, whenever the people become so infatuated as to connive at acts of arbitrary power in popular leaders. For, such leaders, depending on the weakness or sottishness of the multitude to overlook, perhaps to applaud, all acts of tyranny or oppression committed on individuals, so long as a pretence is held out, that they are done for the public good, without considering that no individual can be oppressed without at the same time threatening the liberty and safety of all, will be very much inclined to trample on any obstacles which may stand in the way of their ambition, however the rights t)f others may be sacrificed in consequence. But, if the people have the good sense to consider, that the greater the power of the offender, the more necessity there must always be to bring him to justice; and that no public services whatever are a sufficient warrant for the violation of the laws of the country and the rights and liberties of the citizens, and sustain the decisions of the tribunals of justice in assertion of those rights by an open avowal of such sentiments, there will never be any danger of a loss of freedom from any such usurpation of unconstitutional power.

7. The same amendment provides, that no man shall be compelled to give evidence against himself. This provision forbids the enactment of laws, which shall authorize the infliction of torture, imprisonment, or any other means of coercion, in order to compel an accused person to confess his guilt, and is in perfect accordance with the principles of the common law, which excludes, as incompetent, all evidence of confessions, extorted either by threats or promises of favor made by persons acting judicially, or officially.

8. The same amendment provides, that ‘no person shall be deprived of life, liberty or property without due process of law, &c. Sic. This clause seems not to be aimed so much at the tyrannical conduct of persons in power, acting under an usurped authority, as to prevent congress or the legislatures of the states from intrusting a power over the lives or the liberties of the citizens to public officers in command, and from confiscating the estates of individuals without the formality of trial, by mere unprincipled acts of legislation. Bills of attainder are prohibited in the constitution, in Section ix, Article 1. Even this prohibition, it seems, is not wholly superfluous. Before the adoption of the constitution, a man by the name of Phillips was attainted by a bill of the legislature of Virginia, and was executed under it.

9. Under amendment sixth, the accused shall enjoy the right to a speedy and public trial, &c. &c. These just and humane provisions, are made to prevent the possibility of unfairness or oppression, from being practised upon the humblest or most obnoxious individual in society. An accused person cannot now be detained in prison, as otherwise he might be, from year to year, at the discretion of the court or the public prosecutor, but has a right to demand a trial at the regular time, and cannot justly or constitutionally be deprived of it, or delayed without sufficient cause. If there is no substantial reason for delay, he must either be tried or discharged without trial. If any other rule were adopted, he might be kept in perpetual imprisonment, under one pretence or other. The absence of material witnesses on the part of the prosecutor, is not of itself a sufficient cause for putting off the trial, unless it appears also, that the public prosecutor has made every reasonable exertion to procure their attendance, and that he will probably be able to do so at the next regular term. Neither will it be a sufficient cause for delay even then, if the prisoner is willing to admit that the absent witness will testify in the manner the prosecutor states in his affidavit he expects him to testify; or, if the person accused can produce the record of the conviction of such absent person, of any crime that renders his testimony inadmissible in a court of justice. Neither ought the indisposition of the public prosecutor, to be considered as a sufficient reason for putting off a trial, where the accused party is suffering imprisonment in the mean time. The liberty of the citizen ought not to depend one moment on the health of the public prosecutor. If any of the jurymen are not impartial, &c., if they have any personal interest in the result of the trial; if they have expressed a decided opinion as to the guilt or innocence of the prisoner, they ought to be taken from the jury either on the challenge of the prisoner, or that of the public prosecutor, or, on the challenge of the juror himself; in order that justice may be done to the public as well as to the accused party.

The prisoner must also be tried in the district where the crime is charged to have been committed. This is provided, in order that he may not be liable to be oppressed by being taken away among strangers, who, not being acquainted with his previous character, would derive their first impressions with regard to it, from the nature of the accusation itself.

It may not be amiss here, to suggest, that an innocent person accused of a crime, should be very cautious in the voluntary relinquishment of any formality, which the law require to be complied with in criminal trials. All those formalities are directed for the purpose of protecting innocence from the possibility of an unjust conviction. They are all grounded on some sufficient reason, though that reason may not always appear, or may not be applicable to every case. They ought not to be so numerous or so hard to be complied with, as to prevent the conviction of guilt itself, it is true, but they cannot be liable to this exception, since notwithstanding the strict observance of them, the innocent sometimes are convicted.

The case is easily conceivable, that a person perfectly innocent, may, from the force of concurring circumstances publicly known, be generally believed to be guilty of the crime of which he is accused; and the court as well as the jury and the witnesses, may be so satisfied of it, and of j the plenary proof which it is expected to adduce against him, that the unfortunate individual may be considered as virtually condemned in the minds of all, even before the trial is commenced. It is here that the wisdom and humanity of these requirements and technical formalities are most manifest. For, if they are strictly observed, the court and jury, however strong their prepossessions may possibly be against the prisoner, if they pa